NJ-SPJ and NJ Broadcasters Association Submit Testimony Opposing S2930, Changes to New Jersey’s Open Public Records Act

The New Jersey Society of Professional Journalists and the New Jersey Broadcasters Association have submitted joint testimony in opposition to the pending proposals to change New Jersey’s Open Public Records Act. S2930 is receiving a hearing in the New Jersey Senate Budget and Appropriations Committee Monday morning. Here is the text of the testimony from NJ-SPJ and NJBA:

To: Members of the Senate Budget and Appropriations Committee

From: Isaac Avilucea, Board Member, New Jersey Society of Professional Journalists
Jordan Walton, Executive Director, New Jersey Broadcasters Association

Re: Written testimony AGAINST S2930

A cache of private messages linking Governor Christie’s office to vindictive lane closures at the George Washington Bridge in September plunged the administration into a deep crisis on Wednesday, threatening Christie’s national profile as a straight-talker and feeding criticism that his administration has used its power to bully political enemies.

That’s the opening of a story written in 2014 by former Record reporter Shawn Boburg, now with the Washington Post. He helped crack open one of the state’s biggest political scandals, Bridgegate, which ensnared top aides of then-Gov. Chris Christie. 

“Time for some traffic problems in Fort Lee,” Bridget Anne Kelly, then Christie’s chief of staff, wrote in one email obtained by the outlet. 

The scandal hounded Christie when he ran for president and became part of New Jersey lore. Boburg’s story, meticulously backstopped by public records, and the Record’s extensive reporting on Bridgegate, wouldn’t have been possible without the Open Public Records Act. 

“We do an awful lot of public records requests,” Dan Sforza, the editor who led the Record’s coverage of Bridgegate, told Poynter in 2014. “They are the go-to tool for us on virtually anything of substance.”

As being a watchdog over public affairs is part of our code of ethics, the New Jersey Society of Professional Journalists, joined by the New Jersey Broadcasters Association, is submitting this written testimony in OPPOSITION to S2930.

Creating email and call logs will save all involved time and money.

One provision of this bill would make it tougher for journalists to obtain emails like the ones the Record relied on to break Bridgegate. It would force reporters and other requesters to ask for emails related to “specific subject matter” during a “discrete and limited time period.” 

Records custodians may complain about having to produce email logs. But the New Jersey Supreme Court has already ruled that these are government records. Often, reporters rely on logs to hone in on specific emails rather than submitting records requests that would require custodians to conduct the types of lengthy searches based on key words and phrases proposed by the bill. 

While creating email logs may seem laborious, they save record custodians time. Many municipalities can easily extract electronically stored information regarding senders, recipients, dates and subjects of emails. Those records can be provided to reporters who then use the logs to comb through troves of emails and identify ones by subject lines that they want. This eliminates the need for reporters to cast a wider net in hopes of finding what they’re actually looking for, and streamlines searches for everyone involved.  

Anecdotally, emails logs have helped some of our reporters expose a former city clerk who was spending hours on city time writing frivolous ethics complaints and criminal referrals to law enforcement agencies rather than his duties.

There are countless stories like this across the Garden State about fraud, abuse and waste that wouldn’t have been uncovered without access to crucial records such as email logs. 

OPRA fees creates a cottage industry of people relying on attorney fees. 

Sen. Sarlo has pointed to the need to reform OPRA to eliminate the “cottage industries that have been created that utilize our hardworking, understaffed small municipal offices for research to help them with their legal cases or to help them with their projects.”

While few commercial requesters may use OPRA in this manner, Michael Cerra, executive director of the New Jersey League of Municipalities, told the New Jersey Monitor that there’s no way to quantify how often this happens, and that the reports of this are “anecdotal.”

Without concrete evidence to support that this is the norm rather than the exception, we would recommend further study of the issue before changing the law. Most people who request open records are journalists and citizens who care deeply about good government, not ones looking to exploit the system. 

Creating new laws to punish the few at the expense of the many is illogical, and a crackdown would naturally embolden those who truly look to hold the government accountable into making more, not fewer, requests.

Discretionary fee-shifting provision would unfairly penalize media outlets, small and large

There is undoubtedly lots of discussion around the provision that would make discretionary the awarding of attorney fees to the winning parties. On that point, we’d like to draw your attention to the many state newspapers that no longer have in-house counsel because of the dire financial straits the industry is navigating. 

The mandatory fee-shifting provision is a “David vs. Goliath” equalizer for these outlets. They rely on contingency agreements with public records lawyers who only pursue cases in which they believe OPRA violations occurred.  They must prove that in court to be entitled to recoup attorney fees, and these cases take time and effort.

They can sometimes drag on for years, as was the case for The Trentonian in a records fight it pursued against Ewing Township for denying access to a use-of-force report related to a case in which officers were later indicted by the federal government for using excessive force during the arrest of a Black teenager. 

There is little incentive for attorneys to file frivolous OPRA lawsuits.

Rather, the fee-shifting provision protects smaller news outlets from having their rights trampled by deep-pocketed agencies that unlawfully deny requests and force those outlets to prove them wrong in court.

OPRA ensures that the public trust is kept

While this bill is being promoted by supporters as a “reform” of OPRA, NJ-SPJ and NJBA believes this is misinformation. A reform aims to change something for the better. This bill does the exact opposite.

For the reasons stated, we ask for one of two things to happen: for the committee to reject this bill or for the sponsor to pull it back from consideration by this committee.