Under a bill pending in the New Jersey state legislature, citizens could have a restraining order issued against them for filing public records requests that annoy government officials or seek too many records. That’s bad, because the public records requests that really annoy government officials are the ones that expose corruption or scandals. Most public records requests (and Freedom of Information Act requests) are quite boring or ineffectual and don’t annoy government officials much. It’s the ones that do annoy them that actually serve an important purpose.
(Most people don’t know how to formulate a public-records request well, and either end up with no records as a result; or end up with records that are boring, or are so heavily redacted that they are incomprehensible — many very interesting records contain lots of material that is exempt from disclosure under the Freedom of Information Act or state public-records laws because of the deliberative process privilege, so all the interesting bits of the document get redacted as “privileged.” On the other hand, the government sometimes slips up and waives deliberative process privilege by sharing the privileged material with someone who can’t assert the privilege, meaning if you seek documents shared with those people, you may get otherwise privileged internal records that the government wants to hide).
Reason Magazine reports:
Just asking questions? That might become illegal, sort of, in New Jersey. Powerful interest groups there are pushing a bill that would overhaul the state Open Public Records Act (OPRA), making it harder for the public to request government documents—and the legislature might vote on it today. One provision would allow state and local agencies to sue people who request too many documents at once.
The bill states that courts can issue a restraining order against requesters who intend to “harass” government agencies or “substantially interrupt the performance of government function.” The order could limit “the number and scope of requests the requestor may make,” or even eliminate the requester’s right to obtain government records statewide.
New Jersey politicians have been salivating over this power. Last year, the Township of Irvington sued an elderly woman, claiming that her frequent requests for information “bullied and annoyed” municipal officials. After getting bad press, Irvington backed out of the lawsuit—but then it threatened to have First Amendment lawyer Adam Steinbaugh prosecuted when he dug around for more records on the case…..Critics say that the bill would shield New Jersey’s notoriously corrupt, mobbed-up politics from the public eye. For example, records obtained under OPRA were important for blowing open the 2014 “Bridgegate” scandal….A former attorney for The Record, the local newspaper that first broke the scandal, has stated that the proposed bill would have made The Record‘s Bridgegate reporting impossible.
The bill also makes it harder to sue agencies that hide public records. As the law currently stands, people who win a public records lawsuit can force the agency to pay their lawyers’ fees. (The federal Freedom of Information Act and almost all state records laws include the same mechanism.) Under the new bill, courts would only award legal fees if they found the agency to be acting in “bad faith.” …
The bill, [New Jersey Comptroller] Walsh wrote on social media, “will increase the likelihood of fraud, waste, and abuse. Some of our best tips come from concerned residents who have filed OPRA requests.” A witness testifying in favor of the bill accidentally demonstrated Walsh’s point. During a state assembly hearing on Friday, a town clerk complained that Easthampton Township had to pay $13,000 in attorney fees after Libertarians for Transparent Government sued for government payroll records in 2018. As it turns out, the lawsuit uncovered that a police officer had been paid $321,942.17 while suspended. The New Jersey Superior Court ordered the officer to pay back the money in 2020.
The First Amendment right to petition the government should include asking questions or requesting records even when it makes a government official feel “harassed.” As the federal appeals court in Philadelphia once noted, “There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.”
