In 2005, New Jersey enacted a sweeping law called the Emergency Health Powers Act, giving the governor greater authority to take actions to protect Garden State residents during a health crisis.
Gov.
Phil Murphy has cited the statute frequently the last two months as he’s issued a series of orders to place the state in near-lockdown to fight the
coronavirus pandemic.
But in an unexpected development, some government agencies in Murphy’s administration have also cited the law to reject requests from media outlets seeking public records related to how the state has responded to an outbreak that has killed more than 10,000 residents and caused widespread unemployment.
The ability to obtain records is one of the key tools journalists, advocates, and everyday citizens wield to examine the inner workings of government and discover how your taxpayer dollars are being spent (or misspent).
And the use of the 2005 law to deny documents has drawn criticism from open-government advocates and led two of the law’s sponsors to say the statute might need alterations.
State Senate Majority Leader Loretta Weinberg, one of the sponsors, said it’s “troubling” those records were rejected and insisted the law was “never designed to make government secret.”
“That was not my intention,” Weinberg, D-Bergen, said. “If the wording was inappropriate, we should be changing it. People in our government should be more anxious to share information than keep it.”
The issue underscores how difficult it has sometimes been to secure documents using the state’s Open Public Records Act — also known as OPRA — during the pandemic.
As COVID-19 spread rapidly through the state, Murphy
also signed a new law in March that relaxes the requirement that state and local government agencies must respond to a records request within seven days. The law says they now have to make a “reasonable effort” to meet that deadline or “as soon as possible thereafter” if there’s a state of emergency.
In an unusual step, NJ Advance Media, the USA Today Network, and the Associated Press shared information about the records they have recently sought, to show the frequency and impact of the state’s refusal to provide documents amid an unprecedented public emergency.
- NJ Advance Media — which provides content to NJ.com, The Star-Ledger and other affiliated newspapers — has not received responses from the state Department of Health and State Police to requests for information about contracts the state made with laboratories and consultants related to the virus, among other records. The health department has asked for delays twice for inspection reports and other information on nursing homes. The department has, however, delivered documents related to a longterm care facility in Andover that has faced controversy.
- The USA Today Network — which publishes The Record, the Asbury Park Press, and other New Jersey newspapers — sought records that show how the state worked with U.S. Centers for Disease Control and Prevention officials in the months before and as the virus hit the state and how it managed the protective gear that keeps healthcare workers safe. They were denied based on the 2005 health powers law. The Network objected to the denials, saying that law does not permit the state to keep all records hidden simply because they relate in some way to COVID-19.
- The Associated Press sought information about hospital capacity and supplies at nursing homes but were also denied based on the 2005 law.
Record keepers have asked for more time to respond to other record requests from the news organizations that would show how much the state is spending to respond to the crisis.
Murphy, a Democrat and avowed progressive, has often said his administration strives for transparency. Throughout the COVID-19 pandemic, he has held daily briefings relaying information and statistics about the spread of the virus in New Jersey, the American state with the second-most cases and deaths.
Murphy’s administration did not respond to requests for comment for this story. But the governor’s office referred to comments Murphy made in March in which he defended relaxing public-records laws, arguing that drastic steps are needed because the state is “at war” with the virus.
“It’s nothing against the journalists (or) the media community,” Murphy said. “Trust me, that’s not the point. In fact, I’m going out of my way to praise media as an essential service because I mean it. ... We just have to deal with the reality of manpower, the ability to turn things around. ... There’s no thematic association with that other than we’re at war with a virus.”
CJ Griffin, an attorney who runs
a public-records blog in New Jersey, argued that transparency is even more essential “during a war and during a public health crisis" because misconduct is more likely in those times.
“And the public is starving for information now," Griffin added. “They want to have confidence in government."
“I think there’s this general sense of secrecy that tends to happen whenever an emergency pops up," she said.
The issue with the 2005 Emergency Health Powers Act stems from a one-sentence provision about documents buried deep in the law.
Sponsors say the law was enacted after Hurricane Katrina to make sure governors could take broad action to protect New Jersey’s health during states of emergency. This is the first time a governor has used it, Murphy’s office said.
“The only reason it’s coming up now is because we’ve haven’t had a public health emergency,” said Walter Leurs, a lawyer specializing in transparency issues.
That may be why there weren’t questions over the provision that says “any correspondence, records, reports and medical information made, maintained, received or filed pursuant to this act shall not be considered a public or government record.”
Leurs, who is also president of the
New Jersey Foundation for Open Government, said that means “any record that relates to the public health emergency that was sent or received that was kept on file is not a public record.”
“Which is everything,” he said. “The way that law was written, its intent was very, very broad. What happens is: The government gives us the information they want to give us."
State Sen. Joseph Vitale, who helped write the law, said he understands the dilemma the Murphy administration is facing during the pandemic.
“They’re going 100 miles an hour 24/7," Vitale, D-Middlesex, said.
But the legislator insisted he “didn’t contemplate" the law would be used to deny pubic records.
“That’s information that is helpful," Vitale said. “It would hold hospitals accountable. The more information, the better. I’ll take another look at that.”
Then there’s the new law relaxing OPRA response times during a crisis. The bipartisan measure (
A3849) was part of a package of bills the Democratic-controlled state Legislature quickly approved in the early days of the outbreak to help the state manage the emergency. It passed both houses without a single no vote before Murphy signed it.
Weinberg, who also sponsored this law, said the goal is to give clerks “a little extra time“ to gather records during states of emergency.
Sponsors say this provides leeway in case state or local workers need deadline extensions because they’re stuck at home and can’t immediately drum up records that are physically in an office. They also say it takes into account that many government agencies have been busy reacting to the virus and may not be able to quickly gather records.
Lori Buckelew, a senior legislative analyst with the state League of Municipalities, said the new law was needed because of the lessons local governments learned from Hurricane Sandy in 2012.
“During Sandy, you had municipalities, especially Shore communities, dealing with a natural disaster but still had to handle OPRA requests within seven days,” Buckelew said.
Even with loosened deadlines, she said, “what we’re hearing anecdotally is most towns are responding to requests."
Leurs said there’s “really no reason for municipalities to need more time” because most documents are now electronic.
Griffin said agencies that were already good about providing records are “still really good" in the wake of the law — but ones that weren’t good are “to the point of almost ignoring OPRA altogether.”
State Sen. Declan O’Scanlon, another sponsor, said relaxing those rules was necessary and not punitive.
“We were not trying to screw the press here," O’Scanlon, R-Monmouth, said. "This is just trying to understand and accept human beings’ ability to handle this stuff.”
NJ Advance Media staff writers Payton Guion, Kelly Heyboer, Susan K. Livio, and Ted Sherman contributed to this report.
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