New Jersey Gov. Phil Murphy signs deeply controversial public records overhaul

New Jersey Gov. Phil Murphy on Wednesday signed a deeply controversial bill to overhaul the state's Open Public Records Act despite intense public pushback from activists who warned it would enable corruption and tarnish his legacy.

The governor issued a “signing statement” with the legislation, NJ S2930 (24R), explaining his rationale for approving it and arguing that its changes are relatively modest in scope.

“I know that this decision will disappoint many members of the advocacy community, including a number of social justice, labor, and environmental organizations, among others. I have heard the many objections to the bill directly, and I know that they are made in good faith and with good intentions,” Murphy said.

Nevertheless, Murphy wrote that the changes in the bill were “relatively modest” and that the 22-year-old law needed modernization.

“If I believed that this bill would enable corruption in any way, I would unhesitatingly veto it,” Murphy wrote.

Many advocacy groups and press representatives have said the legislation would erode public access to crucial government documents. And critics have said it's the latest measure that makes New Jersey less transparent.

The signing statement, which is unlikely to appease the bill’s critics, doesn’t have the force of law, but a judge in a records dispute could look to it in interpreting it.

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. Committee meetings on the bill were dominated by critics who believe New Jersey government officials were using anecdotal evidence as an effort to more strictly clamp down on what should be public information.

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.

Critics argue that this would disincentivize governments from complying with legitimate public records requests knowing that the likelihood of their being challenged in court or with the state's Government Records Council would decrease. They also said it would chill access because lawyers would be less likely to take on precedential cases in which it’s not yet clear whether the records being sought should be publicly available.

“Unequivocally, New Jersey is going to be less transparent,” attorney CJ Griffin, who represents clients in public records cases, said in a phone interview. “It’s a stain on [Murphy’s] legacy that I think at least progressive people are largely happy with. But this is something that’s historic, deeply problematic and is going to unequivocally lead to all these towns and counties taking advantage of the gross problems with the bill.”

Murphy in his statement defended the fee-shifting provision, writing that “local officials argue that this provision unnecessarily incentivizes litigation when municipal and county clerks are trying their best to abide by the statute and denials of access are inadvertent or unintentional.”

Murphy also stressed that the bill encourages towns to put public documents online and provides funding to facilitate it.

Other controversial provisions would:

— Make it harder for requesters to challenge special fees governments can charge to fulfill their request, shifting the burden to the requester to show they’re unreasonable.

— Allow governments to sue to limit requesters’ records requests if they show there’s an "intent to substantially impair” government operations.

— Require requesters to be more specific when searching for emails and other communications from government officials.

— Expand the amount of time governments have to respond to commercial records requests from seven to 14 days, but allow companies to pay extra to expedite their requests.

— Bar access to the metadata in government files, except the part “that identifies authorship, identity of editor, and time of change.”

— Bar those have received photos or video footage through a public records request from disseminating “any indecent or graphic images of the subject’s intimate part” without their consent.

The legislation also expands the Government Records Council, which hears denial appeals, and funds it with $6 million. The number of public members would increase from three to eight. The public members, nominated by the governor and at the recommendation of legislative leaders, would earn a small salary and would no longer be barred from holding public employment.

Critics have painted the bill as the latest and perhaps most severe of a raft of measures in recent years that have made New Jersey government and the political process more opaque. Murphy has said little about the legislation since it was approved in the Legislature last month, but he met with opponents late last month who expressed their concerns.

Lawmakers, for instance, recently loosened their own financial disclosure requirements so that they no longer have to list their own homes, or even second homes, unless they earn income from renting them out. But they did not update the vague income disclosure requirements, in which legislators check boxes to represent the amount they earned from a job, with the top category being “above $50,000.”

“Daniel’s Law,” enacted in 2020 in the aftermath of the shooting death of Judge Esther Salas’ son, Daniel Anderl, by a man with a grudge against Salas, has created bureaucratic headaches around the state by requiring the redaction of addresses and phone numbers of judges, law enforcement officials and others.

And the “Elections Transparency Act,” signed by Murphy last year, expanded campaign contribution limits while in some cases creating disclosure loopholes.

The law creates a new category of independent expenditure groups that are subject to looser reporting requirements than candidate committees and PACs, no longer requiring them to report donations in the closing days of an election. That enabled a shadowy group tied to South Jersey Democrats to spend nearly a quarter-million dollars promoting allegedly fake candidates in the November election without disclosing the source of its income until well after the election. The group, Jersey Freedom — whose ads were designed to draw votes from Republicans to “conservative” independent candidates — turned out to be funded by a South Jersey Democratic super PAC and a carpenters union super PAC.

Progressive activists, buoyed by the recent court-mandated elimination of the “county line” that Democratic machines have used for decades to get a leg up over non-party backed challengers in primary elections, warned that state lawmakers who backed this bill could pay the price at the polls. Several lawmakers who voted in favor of the bill last month later changed their votes to no, saying they had been recorded mistakenly. But their votes changed after it had become clear that legislative leaders had more than enough votes to pass it.

In a statement, ACLU of New Jersey Policy Director Sarah Fajardo called Murphy’s signing of the bill “shameful.”

“[W]e know that voters will have the last word at the ballot box next year — and maybe then Legislators will remember who they are meant to serve,” Fajardo wrote.