Gov. Murphy signs bill to overhaul public records law in blow to transparency advocates • New Jersey Monitor

Gov. Phil Murphy signed a bill into law Wednesday amends the Open Public Archives Act in ways that critics say will encourage public entities to deny access to government documents, limit applicants’ ability to challenge these denials in court, and shield a range of documents previously considered public.

In a rackMurphy acknowledged that his signing of the bill will disappoint advocates who said the bill would limit transparency. But he said that if he believed the bill would “enable corruption in any way,” he would “veto it without hesitation.”

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

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

“It is shameful that, despite the overwhelming concerns of their constituents, lawmakers rushed through and signed into law a law that severely restricts access to government documents and limits the public’s ability to hold elected officials accountable,” said Fajardo. “But we know that voters will have the final say at the ballot box next year — and perhaps then lawmakers will remember who they are supposed to serve.”

Supporters of the bill, that was widely criticized Journalists, transparency advocates and good government groups said a revamp of the law is needed to modernize it and help governments deal with what they call a flood of records requests by citizens and commercial entities.

One of the main concerns among the bill’s critics is a change in what is called “fee-shifting.” Previously, when applicants sued governments over denied documents and won in court, the losing party was forced to pay the applicants’ legal fees. The aim was to discourage governments from refusing public records in bad faith.

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

“Many local officials argue that (mandatory fee shifting) unnecessarily encourages litigation when municipal and county clerks do their best to comply with the statute and the denial of access is inadvertent or unintentional. These local officials note that this lawsuit, and the resulting attorney fees, will impose significant costs on taxpayers,” Murphy said.

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

Governments must prove an applicant’s intent with clear and convincing evidence – a standard that requires them to demonstrate that their claim is substantially more likely than not – but there is no mechanism for shifting fees for such procedures, meaning applicants have to bear the costs would wear regardless of whether they win or not. not.

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The bill also includes new exceptions that would protect personal identifying information, such as names, addresses and phone numbers, from disclosure on documents such as pet licenses, Motor Vehicle Commission records and government reporting filings.

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

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

Custodians rarely complete filing requests without requesting at least one seven-day extension, and it is unclear what happens if a custodian requests an extension for a request for which a company has agreed to pay a special service fee.

The bill would allow governments to refer requesters to public documents posted online in lieu of complying with the request, although the bill does not set a standard for which documents should be posted and requires governments to only post documents online to the extent feasible is.

Government funding for this facility is meager. The bill provides $4 million for this, but that money would be distributed among more than 1,000 municipalities, school boards and other political branches. It is not clear whether such financing will be repeated. The bill does not require this.

Other provisions would codify a non-binding precedent from the Government Records Council — a body that languidly adjudicates public records disputes, taking an average of 21 months to resolve cases — that requires applicants to provide names, a specific time period and a specific specify subject when searching for civil servants. ‘ emails, text messages or other communications.

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

The legislation also seeks to authorize 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 approximately 21 months after its signing.

As with the courts, the bill removes provisions that require the board to award attorneys’ fees to applicants who successfully challenge an unlawfully denied records request.