State lawmakers shut the shades during Sunshine Week

The annual celebration of government openness and public records known as Sunshine Week may be over, but journalists’ fight for transparency continues.

To honor this year’s Sunshine Week, we published a new analysis by U.S. Press Freedom Tracker Senior Reporter Stephanie Sugars about the costs of agencies’ pointless battles against records requests. We also hosted an X Space on the same topic with Sugars and David Cuillier, director of the Freedom of Information Project at the Brechner Center for the Advancement of the First Amendment.

But some states took a different and sickeningly ironic approach to marking Sunshine Week, by trying to crack down on the public’s access to government records and meetings. For more about the worst offenders — New Jersey, Colorado, and California — and one ray of hope from New York, read on.

New Jersey rushes anti-transparency bills 

New Jersey lawmakers decided that Sunshine Week was the perfect time to rush through bills making a slew of changes that would gut the New Jersey Open Public Records Act.

The proposals would make it harder to access government communications like emails and any document that officials label a “draft.” They would also establish a task force on access to police records that risks putting New Jersey even further behind other states when it comes to public scrutiny of police misconduct.

The legislation would further harm transparency by making “fee-shifting” optional. Because agencies would not always have to pay the attorneys fees of requesters who win public records lawsuits, it would be harder to find lawyers to fight record denials in court. And, as Cuillier pointed out during our Sunshine Week X Space, states with mandatory fee-shifting “tend to report better compliance” with public records laws compared to those without. 

The bills faced fierce opposition, including from a coalition of civil society organizations led by the New Jersey Working Families Party. The coalition, which includes Freedom of the Press Foundation (FPF), sent the legislature a letter explaining the proposals’ flaws.

Troublingly, State Senate President Nicholas Scutari, who supports the bills, responded to the opposition by suggesting that critics haven’t read the bills and don’t understand what the legislature is trying to do. Scutari has indicated that the legislature will take up the bills again by mid-April, with just minor amendments. 

Despite what Scutari may believe, we can assure him that we have read the bill, and we understand all too well what the New Jersey legislature intends: to allow the government to operate in secrecy by limiting the public’s access to records. 

Colorado legislature goes dark

In Colorado, lawmakers thought Sunshine Week was a good time to enact a bill to largely exempt themselves from the state’s open meetings law. To add insult to injury, Colorado Freedom of Information Coalition President Steve Zansberg said that the legislature “completely ignored” the organization’s input on the law.

The measure, which the Colorado governor signed into law on March 13, makes it easier for smaller groups of legislators to meet in secret and will encourage lawmakers to formulate and debate public business over email or text message, to evade public scrutiny. As Zansberg and the coalition’s executive director, Jeff Roberts, point out, emails exchanged between lawmakers related to draft bills or legislative amendments will now be entirely inaccessible to the public. 

It’s outrageous for the legislature to exempt itself from open meetings law that every other public agency in the state must follow. Journalists in Colorado should take it as a challenge to find out what lawmakers are hiding. 

California considers supercharging anti-public records lawsuits

In California this Sunshine Week, a state Assembly committee set a hearing on a proposed law that would amend the California Public Records Act to require public agencies to notify government employees about records requests that would disclose their identity in connection with their work. 

That may sound reasonable, except that California already has a problem with lawsuits brought by public employees who object to the government’s decision to release records under the CPRA. 

The bill under consideration would encourage even more “reverse-CPRA” lawsuits, as a letter by a coalition of press freedom groups opposing it points out. The letter notes numerous examples of problematic reverse-CPRA cases that hindered the release of public records, such as records of substantiated incidents of sexual misconduct by public school employees sought by the news outlet Voice of San Diego.

As Cuillier explained to us, “You can imagine: What if someone just wants a database of the city of San Diego employees with their salaries — routine, very public, nothing wrong with it. But the city has to contact every city employee, let them know, and give them a chance to sue the requester, go to court to stop it. You can see that's going to be really problematic.”

Nothing good can come of spurring more spurious reverse-CPRA lawsuits. The state Assembly ultimately canceled the committee hearing on the bill, but the proposal remains under consideration. 

One ray of hope in New York

Thankfully, not every state legislature tried to undermine transparency during Sunshine Week.

In New York, lawmakers are considering bills that would improve the state’s Freedom of Information Law. Of course, it’s not all sunshine and roses in New York. The whole reason these bills are needed is because the current system suffers from basic problems that impede public access.

But the four bills under consideration would help fix FOIL. They would speed up records requests by setting a firm deadline for responses and the release of records, require agencies to publicly report data about FOIL requests, stop businesses from permanently exempting records they submit to agencies from disclosure, and make it easier for requesters who win public records lawsuits to get attorneys fees.

A coalition of good government, transparency, and press freedom groups, including FPF, sent a letter to New York lawmakers during Sunshine Week to urge them to pass the bills. The legislature should enact these bills swiftly to improve public access to records in the state.

Unfortunately, New York appears to be more the outlier than the norm when it comes to bills that would change state public records laws. Cuillier told us that the Brechner Center has noticed many problematic bills “popping up around the country, particularly this year.” 

He also noted that a new study he has conducted shows that pushback against excessive secrecy is key to ensuring greater transparency at both the state and federal level. That’s why FPF will continue to call out states that make anti-transparency moves, whether during Sunshine Week or any other week.