New Jersey Governor Signs Bill That Will Make It Much More Difficult To Obtain Public Records

Very few governments and government agencies value the transparency and accountability that robust open records laws create. It took an act of Congress to even establish a presumptive right of access to government records. And all across the United States, state governments are always trying to find some way to limit access without getting hit with an injunction from courts that seem far more respectful of this right than the governments and agencies obliged to conform with statutory requirements.

Not for nothing is it pretty much de rigueur to engage in litigation to obtain records from entities legally required to hand them over. New Jersey is the latest state to help itself to more opacity while placing more obligations on the public — you know, the people who pay their salaries. While there have been a few moves towards the positive side of this equation over the past decade, legislators and Governor Phil Murphy have decided the public only deserves to know what the government feels like telling it.

As Matt Friedman reports for Politico, the new normal in New Jersey is discouraging people from suing after their records requests have been blown off by state agencies. This isn’t anything state residents want. This is the governor protecting the government from the people it’s supposed to be serving.

The problematic law doesn’t dial back any obligations to respond to requests. Instead, it’s a bit more nefarious. It assumes government entities will fail to comply with their statutory obligations, but passes that cost on to the people directly by making it far more expensive to force records out of agencies’ hands.

Here’s the impetus:

The push for the bill has largely come from lobbyists for county and local governments, who say records custodians are burdened by commercial and unreasonable requests by a small number of people.

And here’s the outcome:

Most controversially, the legislation would end the current practice of mandatory “fee shifting,” in which governments pay the “reasonable” legal costs for any requester who successfully challenges a records denial in court. It would instead leave it up to a judge, who would only be required to award the legal costs to the plaintiff if they determine the denial was made in “bad faith,” “unreasonably,” or the government agency “knowingly or willfully” violated the law.

That places the burden of litigation almost entirely on records requesters. If they decide to initiate litigation to obtain what the law says the state must turn over, they’re now faced with the possibility of not being able to recover their litigation costs even if a judge rules a government agency must turn over the requested records. All the government needs to demonstrate (and a judge needs to trust its narrative) is that any failure to provide records wasn’t a “knowing” violation of the law. This is the government seeing all the litigation non-compliant agencies generate and somehow arriving at the conclusion that it just must be too easy to sue the government for refusing to uphold its end of the public records bargain.

And that’s not all. The law also grants a presumptive fee burden on requesters, requiring them to demonstrate (to agencies already unwilling to comply with requests) that the requested fees are “unreasonable.” More specificity is also demanded of requesters, which is insane because requesters in some cases can’t possibly know the specifics of the records they’re requesting and will likely only have those specifics if the government agency actually hands over the records.

Bizarrely, it also bars requesters from sharing any photo or video received via a public records request if it contains “any indecent or graphic images of the subject’s intimate part” without getting direct permission from the person captured in the recording or photo. And that makes it pretty easy for the government to bury photos and recordings it doesn’t want to have shared by refusing to redact or blur any footage/photos containing an “intimate part.”

That means things like a violent arrest of person suffering a mental health crisis could be buried just because (as happens frequently in cases like these) the person being violently subdued by cops is underclothed or naked. If nothing else, it passes on the expense of redacting footage to those receiving the recordings, rather than place that obligation on those releasing records that might violate the stipulations of the revised public records law.

The gist of the law — and definitely the gist of the governor’s statement [PDF] in support of his own signature on said law — is that the government is real victim here. It’s being steadily crushed under the litigious heel of requesters who sue when the government violates the law, refuses to hand over records it’s obligated to hand over, or just make what the government considers to be too many records requests.

After a thorough examination of the provisions of the bill, I am persuaded that the changes, viewed comprehensively, are relatively modest.

Hmmm. Except that no one but government entities seeking greater opacity (or at least angling for a lower obligation for responses) is in favor of this law. Anyone actually engaged in transparency and accountability efforts doesn’t see this as “modest” revision of the state’s public records law, much less as a win for the general public. This is the government doing what it does with its greatest enthusiasm: protecting itself from the people it’s supposed to be serving.