Fourth of July weekend this year wasn’t just going to be about fireworks and hot dogs for New Jersey Assemblyman George F. Geist. The bill Geist co-sponsored, the law that access advocates and the local press association had spent years prodding through the legislature, finally would be effective Monday, July 8. It was a time for celebrating New Jersey’s new status as one of the states with the most considerable open records guidelines in the nation.
But New Jersey Gov. James E. McGreevey had other plans.
The state’s new Open Public Records Act (OPRA) had been in effect only one day when the governor issued an executive order that set off a heated summer battle over the new law. The order swept 583 new exemptions to the OPRA onto the books and requested that all levels of government withhold records that “materially increase” the risk of a terrorist attack. A number of the governor’s own records, as well as home addresses and phone numbers of citizens, also made the list of information withheld from the OPRA.
“The law didn’t sink back to the bottom where it was by these exemptions, but they did blow a hole in it,” said John O’Brien, the executive director for the New Jersey Press Association. “It’s not the same law it was [July 8].”
Public outcry over the July executive order fueled a movement to change the language in the order. By mid-August, McGreevey issued a second executive order, breathing new life into what some said was a dying law.
Despite the governor’s claims that he is committed to open government, access advocates say they will remain on their toes.
OUT WITH THE OLD
By many accounts, the state’s previous open records statute was among the worst in the 50 states. “Routinely, it could take up to years to get records even if you were entitled to them,” said Guy Baehr, a board member for the New Jersey Foundation for Open Government, an organization formed in part to support better access laws in the state. (Baehr also is chair of SPJ’s Awards and Honors Committee.)
With a little pushing from advocates, the OPRA was approved unanimously by both houses on the last day of the legislative session in January. Then-acting Gov. Donald T. DiFrancesco signed the bill on his last day in office.
The new statute took into account the shortcomings of the old law. It set a response time officials must meet when replying to requests and required the state to pay legal fees for people who are denied records and then successfully sue for them. It also created two new entities – the Government Records Council, which can arbitrate disputes between requestors and record custodians, and the Privacy Study Commission, which will review privacy standards used in the dissemination of public documents.
Some said the new statute was democracy at work – people collaborating with politicians to pass a law that worked for everyone.
“The legislature convened numerous community meetings to enable real people public participation before the legislature made a unanimous bipartisan judgment,” Geist said. “So the people proposed the policy.”
THE GOVERNOR STEPS IN
The OPRA seemed to have strong support, which is why many were confused when the governor signed the executive order that watered it down.
“We were all uniformly shocked because this law passed after … a lot of back and forth and discussion and careful attention to all the different interests that are out there,” Baehr said.
The 583 new exemptions issued in by McGreevey’s executive order No. 21 were particularly concerning for access advocates. Under the new law, state departments and agencies can exempt certain documents by proposing the exemptions as regulations and publishing them in a journal called the New Jersey Register. After publication, a mandatory 30-day public comment period goes into effect. Following that period, the agency can respond to any comments, change the regulation or make it official as is.
The governor’s order made the exemptions effective immediately, even though the public had 42 days – until Sept. 11 – to express concerns about them. The press association’s O’Brien said the mass of exemptions seemed to be an “orchestrated plan” by some agencies to stick to secrecy.
But according to Jo Astrid Glading, the governor’s Chief of Policy and Communication, the order was simply a number of “extremely narrow exemptions” for terrorism and privacy issues.
“We are just trying to strike the right balance between constituent privacy and the intent of the law, which the governor is committed to,” Glading said in July.
Access advocates admitted that some of the proposed regulations fit the intent of the law.
“The department of higher education and state universities doesn’t want to give out test questions. I can understand that,” O’Brien said. “Those are examples of reasons there should be this regulation included, so that cooler heads can prevail.”
Other exemptions, however, were not as popular.
“Some of the proposals should have been strangled at birth,” Baehr said. “Somebody should have written a memo and said, ‘get real.’ “
Advocates said exemptions for things such as the locations of farms and historical places are ridiculous – and show how far the agencies have gone by the wayside. “The department of environmental protection wanted to make the location of endangered species not public,” O’Brien said. “I would worry that I would step on them if I didn’t know where they were.”
Baehr said the governor’s office did not provide proper leadership to the state agencies that drafted the exemptions.
“Apparently they didn’t give them any guidance to use common sense or to err on the side of disclosure,” Baehr said. “You can see that because some agencies have pretty sensible, limited regulations that reflect that they are trying to live within the law, but other departments just went berserk.”
Another section of the executive order that concerned advocates allowed the government to withhold any documents that would “materially increase” the risk of a terrorist attack. The wording was too nebulous and easily exploited, advocates said.
“The problem is that the wording is so broad it is creating all kinds of mischief,” O’Brien said. For instance, a school superintendent refused to show the public building plans for a new school, citing the governor’s order not to give out anything that could aid terrorists. “He is asking the people of the town to pay $8 million for a new school, but they can’t see it,” O’Brien said.
Another portion of the executive order that has thrown advocates is a new privacy consideration that keeps all home addresses and telephone numbers from disclosure, unless otherwise provided for by law.
AN ADVOCATE’S WORK IS NEVER DONE
The governor’s office said the order’s intent was misunderstood. “The executive order, I know for a fact, has been misinterpreted and misrepresented, and we are working on that,” Glading said.
Since shortly after the new open records law and the order went into effect, the governor’s office has been meeting with the press association and various newspaper editors. Over a month of meetings paid off for access advocates when McGreevey issued executive order No. 26 on Aug. 13. Advocates said the new order lessened the blow of the initial order by clarifying some of the vague language. Order No. 26 revoked the home address and phone number exemption and called on the Privacy Study Commission to immediately begin looking into whether those things should be exempt.
Executive order No. 26 also eliminated more than 500 of the proposed regulations, including the exemptions for the locations of farms and endangered species. In July, Glading predicted that the regulations proposed by the departments would be altered significantly. After the new order, only 75 remain.
Some still say access advocates have work ahead of them.
“The new executive order is a step in the right direction to restore the intent of the new OPRA law. This time around, the governor’s people did consult with open government advocates, something they didn’t do with the first executive order,” said Joe Tyrrell, president of the New Jersey Foundation for Open Government. “While that’s progress, it’s not a cure.”
Some of the remaining 75 regulations – which still are effective before the public comment period ends – concern Tyrrell.
“Another regulation withholds the duty assignment of any police officer,” he said. “Again, we recognize the need to protect those on undercover assignments. But if the head of the local vice squad happens to be moonlighting as a security guard at a massage parlor – another recent story – that’s something residents need to know.”
Baehr said the state attorney general took steps to clarify the confusing language regarding what information should be exempt because it could aid terrorists. But advocates are still waiting to see what actual guidelines the attorney general issues in that regard.
Tyrrell said there are questions of whether the Government Records Council will operate as it was designed.
“At this point, it remains a creature of the state Department of Community Affairs, to the point where the [Government Records Council] director must refer press questions to the DCA flack,” he said.
Baehr said the New Jersey Foundation for Open Government and other access groups are concerned that city and town officials will convince the governor or the legislature to exempt correspondence and other things sent to local officials. Local officials argue they should be able to exempt these things because the governor’s office and legislature secured those exemptions for themselves.
Even as advocates celebrate the access afforded by the new law and the changes made by executive order No. 26, they said they continue to be vigilant as others try to chip away at access.
“Still, while the struggle for open government in New Jersey remains just that, a struggle, we are hopeful that Gov. McGreevey will draw useful conclusions from this episode,” Tyrrell said.
Amanda Lehmert worked as a summer Pulliam/Kilgore intern at SPJ’s national headquarters. She is a senior at Emerson College.