In a news conference held July 15 at the state house, the N.J. Foundation for Open Government (NJFOG) brought together journalists, advocacy organizations and community activists to challenge Gov. James E. McGreevey’s Executive Order No. 21, which virtually exempts the governor’s office and state agencies from the recently passed New Jersey Open Public Records Act.

"Under our old law, New Jerseyans had to battle government secrecy," said NJFOG President Joe Tyrrell. "Now that we have a good law, we find out our problem is ‘Governor Secrecy.’ During the campaign, he publicly endorsed the law. Once he was elected, Governor Secrecy quietly and, of course secretly, prepared this executive order to gut it."

Following its news conference, members of NJFOG filed written requests with the governor’s office and the state attorney general’s office seeking all records documenting the process by which the executive order was drafted, including the names of any people and organizations consulted, and any supporting documents used to justify the policies promulgated under the order.

For years, advocates and activists across the political spectrum have struggled against New Jersey’s archaic laws and policies concerning public access to information. McGreevey himself bemoaned the status quo in a letter to the editor of a Middlesex County newspaper, in which he described his frustration as mayor of Woodbridge in trying to obtain information when the state announced plans to build a facility for sex offenders in Woodbridge. "With exceptions for police investigations, privacy rights of individuals and other confidential information, the ability of the public to be fully informed about the government that belongs to them is a basic right that springs from the core of our democracy," he wrote.

Some relief finally came in January, when the state Legislature passed and then-Gov. DiFrancesco signed a new law that would greatly expand the public’s ability to get information it needs to hold government accountable.

However, just as the new law went into effect, the governor quietly signed executive order No. 21, which negates the actions of the Legislature. The governor adopted this executive order, which was effective immediately, without consulting with any of the individuals or organizations that have advocated for records access or even the bipartisan sponsors of the law.

There was no process here, advocates and legislators spent months working on this law to ensure it struck a balance between access to information and privacy concerns. The governor totally disregarded that work, and didn’t even bother to consult anyone outside his inner circle when doing so.

In fact, there are numerous sections in which the executive order attempts to exempt from disclosure records the new law already exempts, suggesting that the governor’s order was not drafted from an informed, thoughtful perspective.

A key provision of the order largely exempts the governor’s office itself from the new law. It allows McGreevey to withhold all documents that a court finds to be not public records under the old law (including many of the documents McGreevey sought on the sex offender facility as mayor of Woodbridge).

With this move, the governor has given himself a special statute; he has executive ordered himself above the spirit of the law, and as a consequence citizens will not be able to get information about activities in his office.

The new law had also created a privacy study commission to study the need for additional privacy protections — including limits on what information government collects about individuals — and make recommendations within 18 months.

"If ‘Governor Secrecy’ were concerned about privacy, he would have implemented the privacy study commission six months ago," Tyrrell said. "Instead, he has made that moot by implementing his own sweeping regulations without study."

The governor has couched this attack on open government under the guise of antiterrorism efforts. But the new law, passed four months after Sept. 11, already protected such documents by exempting records concerning "security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software" and well as "emergency or security information or procedures for any building or facility which, if disclosed, would jeopardize security of the building or facility or persons therein." (N.J.S.A. 47:1A-1.1.)

The order also puts into immediate effect more than 400 exemptions proposed by state agencies including banking and insurance, agriculture, education, personnel, environmental protection, and health and senior services until they are formally adopted, modified or rejected. Most of these regulations were proposed in the past 10 days, and the governor’s executive order enacts them without time for public comment or hearings.

NJFOG announced it will activate its Web site (www.njfog.org) as soon as possible—probably within two weeks—and will post all of the more than 400 exemptions to the open public records act that have been proposed by state agencies. It will also establish an e-mail discussion board to gather comments from the public on how these secrecy provisions will affect them.

Perhaps McGreevey said it best in his 1999 letter to the editor: "Revelations about poor decisions or even misconduct by public officials may be embarrassing, but there is no doubt that access to public records serves the long-term good of the government. Disclosure and accountability are among the best tools for preventing fraud, mismanagement, and waste by all levels of government."

The New Jersey foundation for open government, which strongly supported passage of OPRA, is a nonpartisan, nonprofit, tax-exempt corporation founded in January 2001 to increase citizen access to public records and meetings.

Deborah Jacobs is executive director of ACLU-NJ and a member of NJFOG.