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Legislature revamps state public records law

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    NMU         NEW JERSEY         Freedom of Information         Jan 9, 2002    

Legislature revamps state public records law

  • The New Jersey Legislature discarded its notoriously bad right-to-know law in favor of a measure that requires the government to make records available unless they are exempt.

The 38-year-old open records law in New Jersey, considered by many open government advocates to be the worst in the nation, was completely overhauled in a legislative measure signed into law on Jan. 8.

Acting Gov. Donald DiFrancesco signed the measure as his final bill before leaving office. The law, which goes into effect in six months, substantially improves the state’s right-to-know law, although it lost support of the New Jersey Press Association after legislators added a broad exemption for their correspondence. The New Jersey Foundation for Open Government continued its support for the bill despite the change.

Like most open records laws across the country, the new New Jersey law presumes that a public record is open and requires the government to point to a specific exemption to protect any information from disclosure. The state’s old right-to-know law granted access only to records that a requester could show were “required to be kept.”

The law sets up a government 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.

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 foundation, said the old law — with no time requirement — left requesters in limbo, unable to challenge an agency denial.

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

Until passage of this law, New Jersey requesters could use the common law to receive records maintained by public officials carrying out the public’s business. But requests under the common law were generally decided by judges who would balance interests in disclosure and non-disclosure.

Journalists enjoyed some success in the courts and, in the past, lobbied successfully against bills they said would displace both the right-to-know statute and common law rights of access. Baehr said that the new law leaves common law rights intact.

Tom Cafferty, counsel to the press association, said it “heartily” endorsed this measure until the Legislature added a “poison pill” exemption for its own correspondence, broader than the provisions exempting personal correspondence from constituents that the press association had accepted.

The exemption may be short-lived. The Bridgewater Courier News reported Jan. 9 that both DiFrancesco and Gov.-elect James E. McGreevey criticized the Legislature’s last minute exemption for itself. The News also reported that Assemblyman George Geist (R-Camden), who introduced the bill revamping the old law, and Sen. Byron Baer (D-Bergen) the bill’s Senate sponsor, each promised to close the loophole in the next session.

Open record reform bills have been before the state Legislature for the past 12 years. The current measure was introduced on the first day of the 209th legislative session and was signed on the last day.

(Assembly, No. 1309) RD

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© 2002 The Reporters Committee for Freedom of the Press

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