by Marc Pfeiffer for the New Jersey State Policy Lab
OPRA, the state’s Open Public Records Act is showing its age. Now 22 years old, this important public policy suffers, in part, from age, neglect, unintended consequences, and unexpected use cases. Over the years, it has received insufficient legislative attention that left unaddressed, judicial decisions that modified and interpreted key elements.
Over the years, the law’s intent has been unexpectedly undermined by technological changes (e.g., email, text messaging, AI-generated content), abuse of the law by outliers seeking financial gain, and costly financial and administrative burdens placed on government agencies, which are then passed on to local taxpayers. There is also an inadequate and inconsistent understanding of what constitutes the free flow of information in the public interest vs the privacy rights of the individual.
It has also seen an evolution of public expectations and suspicions of government, driven by technology/social media, local, state, and national politics, world events, and increased attention to and fascination with the accusations against unethical public officials. The result is an environment in which many people are increasingly distrustful and dubious of government processes. That leads them to demand more access to government records.
Efforts to repair OPRA must recognize that the law affects all levels of New Jersey government, not just municipal, though that seems to get the most public attention. It has become an indispensable element for:
- the media and its essential role in holding government agencies accountable through records and data.
- companies that use or repackage for sale government data which, which while possibly improving the economy, in some cases may violate privacy expectations.
- non-profit advocacy groups that rely on public records for their work.
- academicians who regularly work under strict confidentiality rules with sensitive data.
- organizations that conduct business and negotiate contracts with government agencies.
- members of the public with vested and public interests in government activities.
How can we solve the problems without a clear understanding of the issues and circumstances that need to be addressed? Using anecdotal reports based on problems that may or not be widespread or affect a single interest is not a sound approach. Policy problem-solving requires a process to identify the range of problems, understand their underlying causes, and assess their frequency and severity. At this link is my description of the questions surrounding OPRA and a process that may lead to potential solutions that address those critical challenges. Furthermore, you can download and read my analysis of eight key OPRA reform bill challenges here.