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Anyone who thought the long battle over the New Jersey Open Public Records Act was over on Jan. 8, when the law was signed, knew by July 8, when it went into force, how wrong they were. Proposed rules published a week earlier in the New Jersey Register — seeking hundreds of wide-ranging exemptions from disclosure — had already alarmed public-access advocates. Then came Gov. James McGreevey’s Executive Order No. 21, issued on July 9. The order makes the proposed regulations effective immediately, in advance of public comment and final adoption, which is months away. It instructs state agencies to act as if the proposed rules and their multitudinous exemptions were already in place. And it instructs the attorney general, in conjunction with the Domestic Security Preparedness Task Force, to draft a new regulation protecting records whose disclosure would “substantially interfere” with the state’s ability to protect against terrorism or sabotage or would “materially increase” the risk or consequences of such acts. In the meantime, state, county and municipal governments, as well as school boards, are to adhere to that standard. Perhaps the provision that has sparked the greatest concern, however, is one that applies only to the governor’s office. It excludes from the category of public records not only advisory, consultative or deliberative records and those containing private personal data, but all records shielded from release by a court as confidential or not public records under the old law. Deborah Jacobs, executive director of the New Jersey affiliate of the American Civil Liberties Union, says the executive order “essentially guts the [new] law” and that she has a “particular problem” with retaining protections extended under the previous law. McGreevey spokeswoman Jo Astrid Glading calls the executive order consistent with the statute and “minimalist” in its approach, noting that the law authorizes adding exemptions by executive order, agency regulation and other means. As to preserving old case law, Glading points to a provision stating that the new law “shall not abrogate any exemption of a public record or government record from public access” under the prior law. N.J.S.A. 47:1A-9. State Sen. Robert Martin, R-Morris, the primary sponsor of the new law, says the language was meant to retain case law that protected a record where there was some reason to do so and not just lack of authority to disclose under the old law. Martin, a lawyer who teaches a course on government at Seton Hall University School of Law, terms the executive order “overbroad” and questions the wisdom of relying on the various departments to submit broad categories of exempted records. Those departments fought the Open Public Records Act for years, and leaving it to them to shape the scope of the new law “potentially undoes what we tried to accomplish,” he says. The Foundation for Open Government, an access advocacy group, is also challenging the executive order as virtually exempting the governor’s office and state agencies from the Open Public Records Act in favor of “business as usual.” The rules proposed by the attorney general’s office include exemptions for: � discrimination complaints, both open and closed; � standard operating procedures and training manuals; � collective negotiations; � employee performance and discipline; � software, source code, manuals and other administrative and technical information; � government test questions and data; � public agency mediations; and � law enforcement duty assignments and related information. Requests for exemptions by other agencies include: � Corrections: Internal Affairs files; rap sheets; identities of physicians at executions; � Labor: records of arbitrations, mediations, and fact-findings, plus final agreements; information on as yet-unannounced plant closings; � Banking: pending applications for licenses or certificates of authority or eligibility; actuarial information; and risk retention or purchasing group membership lists; � Treasury: financial information used for bidding process pre-qualification or classification; property appraisals; feasibility studies; Unclaimed Property records beyond owner’s name and address; income and expense data provided to local tax assessors; appraisals done for tax appeals but not admitted in evidence; � Economic Development Authority: commitments between lenders and applicants for pending transactions; � Personnel: Merit System Board and discrimination appeals and Family Leave files; test data; � State: unanswered constituent letters; pending grant requests; � Environmental Protection: location of endangered plants and animals; information on Green Acres acquisitions that would be jeopardized by disclosure; information on nuclear power plants that would jeopardize plant security or public health, safety or welfare; mediation records; standard operating procedures on enforcement protocols; records on hazardous substances that raise security concerns; � Community Affairs: building plans filed with permit applications; and � Agriculture: locations of farms and other data that could further bioterrorism; pending farmland preservation applications.

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