Acting governor signs sweeping access reform law

From the Winter 2002 issue of The News Media & The Law, page 31.

On the last day of its legislative session in January, New Jersey replaced its antiquated right-to-know law with an open records statute which, like most other freedom of information laws, presumes that government records are open unless an exemption, spelled out in the law, applies.

It becomes effective in July.

The road to the new law was sometimes rocky, but proponents of the measure grew increasingly determined to surmount any obstacles. When former Attorney General John Farmer threatened to push the bill off course with a strong law enforcement exemption two years ago, the New Jersey Press Association created an advertisement that ran full page in many of the state’s newspapers.

“Many world leaders would oppose Bill A1309, too,” stated the ad, depicting Slobodon Milosevic, Fidel Castro, Zemin Jiang and Saddam Hussein. “That’s why the New Jersey Press Association is pressing for passage of a bill that would allow unimpeded access to all government records. Anything less is a subversion of the democratic process.”

The ad also enumerated some of the state’s secrets — $3 million in missing health care funds, a vehicle inspection boondoggle and records on racial profiling.

“What are they trying to hide now?” it asked.

Farmer responded to the ad, worked with the press association to craft a more favorable law enforcement exemption and ultimately supported the bill, according to Thomas Cafferty of Somerset, counsel to the press group.

The state’s old right-to-know law granted access only to records that a requester could show were “required to be kept.” Under the new law, a government agency can deny a record only when it shows that it is exempt.

The new law creates the Government Records Council to mediate open records disputes, to hear citizens’ complaints of denials and to educate state public officials about open government requirements. Use of the council does not preclude court action by a requester, but the review is free. Requesters also have a right of appeal if they aren’t satisfied with the council’s response.

With the new law, a requester may now choose to receive records in paper or electronic format if an agency maintains them both ways. Under the old law, a requester could only receive paper.

The new law also requires a response within seven working days. Guy Baehr, secretary of the New Jersey Foundation for Open Government, said the old law, with no time requirement, often left requesters in limbo, unable to challenge an agency denial while officials dallied indefinitely without reaching any decision. The new law makes some records — budgets, contracts, salary and overtime information — immediately available.

And the new law retains a right to a common law tenet that even if a record is inaccessible under the statute, the court can find that the need for access is more important than the need for confidentiality.

Officials who intentionally violate the law are subject to fines. Requesters who must sue for records may recoup “reasonable” attorneys’ fees. In the past, they could recoup only $500 in attorneys’ fees.

The legislation also calls for creation of a privacy council to address privacy concerns.

The old New Jersey right-to-know law existed for 38 years, and while it was on the books it was considered one of the worst freedom of information laws in the country, according to many FOI advocates and media lawyers.

The statute was so incapable of effecting open government that litigants and the courts looked to the common law for rights of access, and judges balanced the benefits of disclosure against the benefits of confidentiality to decide if records would be open.

Some reporters in New Jersey grew to value the common law tradition and favorable court decisions it engendered. Going to court could be troublesome and expensive, but they were reluctant to give up court precedents they enjoyed even in favor of a law modeled on the freedom of information laws of other states. A fight to preserve common law rights of access in New Jersey felled legislation that could have replaced the right-to-know law earlier.

The new law was introduced in January 2000 on the first day of the 209th legislative session, which ended in January 2002. It was the last bill signed into law by acting Gov. Donald DiFrancesco on the last day before the Legislature adjourned.

Passage of the new law was marred somewhat by a last-minute amendment exempting all legislative correspondence, but Assemblyman George Geist (R-Camden), who introduced the bill revamping the old law, and Sen. Byron Baer (D-Bergen), the bill’s Senate sponsor, have each promised to close that legislative loophole in the next session, according to The Bridgewater Courier-News.

An editorial in The Newark Star Ledger said the new “sweeping” exemption was both dangerous and unnecessary. For example, it says, the exemption would protect a letter to a legislator from a California contractor revealing costly failings of car inspection equipment. It would protect memos from the New Jersey Turnpike Authority describing deficits. Even if such information is embarrassing, it should be public, the editorial said.

DiFrancesco as president of the Senate was a strong supporter of the new law. He negotiated with the New Jersey Press Association and the League of Municipalities to work out their differences over a need for the law and what the law should say. Both groups supported the bill but withdrew their support after the 11th-hour amendment was attached.

Vestiges of the old law remain, however, with an exemption protecting criminal investigatory records “not required by law to be made, maintained or kept on file” but pertaining to an investigation. The Legislature also exempted autopsy photographs, records of victims’ rights agencies, public defender records, some internal records and student records. The law also allows records to be made confidential by executive order. (A1309)

Despite the exemptions and his organization’s objection to the amendment, Cafferty called the new law “a sea change.” He said that in every meeting on the old law, and in numerous articles, New Jersey was cited for having the worst public records act, or if it was not the worst, tied for worst with Pennsylvania.

The Pennsylvania Legislature has held hearings to discuss changes in its 1957 law. Three different bills to change that act are before that state’s Legislature now.

In mid-January, Lillian Swanson, editorial writer for the Philadelphia Inquirer suggested that Pennsylvania lawmakers “take a lesson” from their colleagues across the river. She wrote, “Pennsylvania, one of the best places in the nation to keep a secret, remains stuck in the mud, comfortable in its role as a cellar-dweller in right-to-know laws.” — RD