On June 11 the League hosted a Lunch & Learn to review the new law modernizing the Open Public Records Act (OPRA). The changes to OPRA will take effect on September 3. It is imperative to remember that the existing requirements of OPRA remain in effect and the new provisions will not apply to OPRA requests submitted before September 3.
The Lunch & Learn is the start of the League’s educational programing and training on the new OPRA Law, which is especially important given the misinformation and misunderstanding created by certain opponents of the legislation. Much of the public reporting on this new law was one-sided, unfair and often inaccurate. In fact, at the bottom of each PowerPoint slide we reference the section of law that relates to the changes discussed.
Public reporting has falsely represented the new law as “gutting” access to public records, infringing on government transparency, and inviting corruption.
Myth one is that the legislative intent of the original OPRA has been removed. This is aimed at the opening two paragraphs of the current law, which guarantees the public’s right to access public records. The unfounded claim is that the amended bill removed language in the current statute, reported incorrectly as fact by multiple news outlets. Some but not all, of those outlets have corrected the record. Regardless, it’s false.
Myth two is the claim that the law will result in public agencies suing requestors and that this will discourage the submission of requests. This claim, which is beyond exaggeration, completely ignores the very high threshold that must be met for a public agency to take action.
Myth three is that after removing language dealing with commercial brokers and data mining, the bill does not address commercial requests, one of the underlying objectives of proponents like the League. While we are disappointed that language regarding commercial use of information was taken out, the privacy protections included in the law allow for the redaction of much of the personal identifying information that commercial requests seek. It stretches credulity to suggest, as opponents do, that the redaction of the information usually sought will not have an impact on the number of commercial requests. In other words, why are they going to ask for the personal identifying information when they know it will be redacted?
Myth four regards the shifting of attorney’s fees. The claim is that guaranteeing prevailing attorneys’ rates, which is two to three times higher of the public agency’s attorney, is a necessary enforcement tool. It is critical to remember that these fees are a significant cost to taxpayers. As the Governor noted in his statement, prevailing attorney’s fees may be awarded in a standard matching what is “currently in place under the Law Against Discrimination, the Civil Rights Act, and the federal Freedom of Information Act.”
The League, like you, like our partners, and like the sponsors, remain committed to open and transparent government. We have witnessed unintended consequences of a law approved and signed in the lame duck session in January 2002, a law that reflected the 20th century, not the 21st. Indeed, the effort to modernize and reform OPRA was long overdue and what was signed into law is a good step in the right direction.
Working with the Government Records Council and the Municipal Clerks Association, we are planning additional educational and training opportunities leading up to the September 3 effective date.
The June 11 Lunch & Learn presentation is available to view on the League’s website.
Contacts: Mike Cerra, Executive Director, mcerra@njlm.org, 609-695-3481, x120 and Lori Buckelew, Deputy Executive Director & Director of Government Affairs, lbuckelew@njlm.org, 609-695-3481, x112.