Critics: N.J. open records law has too many loopholes

03/12/2007  AP

New Jersey updated its open records law five years ago with the idea of giving the public a better view of what happens in government.

But open government advocates say New Jersey's law keeps more documents out of the public eye than similar Freedom of Information, or FOI, laws in other states — especially when it comes to records concerning the Legislature.

"It is probably in the bottom tier of FOI regimes," said Mitchell Pearlman, former director of the Connecticut Freedom of Information Commission and author of a forthcoming study on New Jersey's new law.

Pearlman said the law is flawed because it allows the governor, state agencies and each house of the Legislature easy ways to exempt records that they think should not be made public.

Still, the Open Public Records Act can be a useful tool for curious citizens and, especially, journalists.

The law made possible a Web site unveiled last month by the Asbury Park Press that gives the salaries of nearly every public employee in the state. The Associated Press used the law to learn and report which departments in the state government had received subpoenas in a federal corruption investigation.

"It's certainly better than what we had before," said Tom Cafferty, a lawyer for the New Jersey Press Association.

The open records law created penalties for officials who do not comply and a route to appeal rejected requests.

But when it comes to legislators — the very people who passed the law in 2002 — OPRA does not allow much access.

Assembly Republican leader Alex DeCroce has called for lawmakers to be more cooperative in response to a federal subpoena of information. But he said the OPRA law has worked well. He said he has only rarely heard complaints about it and has not heard any gripes about the legislative exemptions.

"It hasn't been something that's been a hindrance to people where they've needed to get information," he said.

Across the country, it's not unusual for lawmakers to exempt themselves, at least in part, from state public records laws. Legislators in at least 17 states have some exemptions, according to the Reporters Committee for Freedom of the Press. But New Jersey's exemptions are broader than most.

Under New Jersey's law, any memos, notes or other documents created upon the request of a lawmaker are exempt. And on top of that, anything lawmakers ask the nonpartisan Office of Legislative Services is considered privileged — though lawmakers can waive that privilege.

Beth Mason, president of the New Jersey Foundation for Open Government, said there should be limits on which dealings between lawmakers and their advisers should be considered private.

"Just because you have an attorney in the room doesn't mean you should have attorney-client privilege," she said.

Communication between lawmakers and constituents also is exempt from New Jersey's open records law. Though the open records law was more than a decade in the making, this provision was inserted just before lawmakers passed the bill.

Albert Porroni, executive director of the nonpartisan Office of Legislative Services, said the purpose of that exemption was to protect the privacy of constituents who may disclose personal information to their legislators.

But some open government advocates say the measure excludes too much, partly because the law defines a constituent as "any state resident or other person communicating with a member of the Legislature."

Pearlman said that in Connecticut, constituent communications are classified into two groups. Those considered political — for instance, a constituent seeking help getting Social Security benefits — are not public records. Those considered legislative — such as an e-mail urging a lawmaker to support a bill — are open records.

Alene Ammond, a former state senator who is now a community activist in Cherry Hill who frequently requests government records, said she's troubled by the exemptions for lawmakers.

"There is no reason for them to have exemptions," she said. "They ought to be up front and public. It is all public business."