Sunday, March 1, 2009

Suggestions to the Government Records Council

I attended the February 25, 2009 meeting of the Government Records Council and offered some suggestions during the public portion of the meeting. Specifically:

1. That the Council make its public meeting minutes more promptly available.
2. That the Council hold one or more of its public meetings someplace other than Trenton, so that the public can more easily attend.
3. That the Council schedule its executive sessions so that members of the public who wish to attend the public meetings don't have to worry about showing up too early or too late.

All of my suggestions were rejected by the Council. So, I sent them the following e-mail to follow up. I ask that anyone who agrees or disagrees with my suggestions, or has additional suggestions, to please send them to the GRC at grc@dca.state.nj.us with a copy to me.

John Paff
Somerset, New Jersey
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Date: Sun, 01 Mar 2009 16:46:28 -0500
To: grc@dca.state.nj.us
From: John Paff
Subject: Follow-up to my comments on 02/25/09

Robin Berg Tabakin, Chair, and members of the
Government Records Council
PO Box 819
Trenton, NJ 08625-0819 (via E-mail only to grc@dca.state.nj.us)

Dear Ms. Tabakin and Council members:

I write to follow up on three matters I raised during the public portion of the February 25, 2009 meeting.

1. Availability of Meeting Minutes prior to their "approval" at a subsequent meeting.

I suggested that the Council's failure to have its November 19, 2008 public meeting minutes publicly available prior to their "approval;" at the February 25, 2009 meeting--more than three months later--violates the "promptly available" mandate of the Open Public Meetings Act, N.J.S.A. 10:4-14.

Executive Director Starghill responded that a) it is critically important for meeting minutes to be approved prior to public release so that the minutes contain no errors, and b) that she is aware of no appellate level decision requiring the Council to deviate from its present position. The fact that the verbatim transcript of the November 19, 2008 meeting erroneously attributed some remarks to the wrong speaker, she claimed, confirmed her conclusion that formal approval of minutes needs to precede their public release.

In follow-up, I invite the Council's attention to Liebskind v. Mayor and Municipal Council of Bayonne, 265 N.J. Super. 389, 394-395 (App. Div. 1993). In that case, the Appellate Division did not take issue with the trial court's order that required the Bayonne City Council to make "copies of final meeting minutes . . . available for inspection within two weeks after each meeting and at least three business days before the next meeting." Of course, this order required public release of minutes before they could be "approved."

Public bodies around the state are complying with the Liebskind decision by marking meeting minutes that are released prior to approval as "draft copies." The "draft copy" label warns the reader that the meeting minutes may be amended after review and prior to approval by the body. The New Jersey Municipal Clerks Association, in its "Study Guide" states that unapproved public meeting minutes are public records and that "draft copies" of those minutes must be publicly released. See Paragraph I of the Study Guide here.

Would you please let me know if the Council is willing to change its position on this issue and release "draft" versions of its public session minutes prior to their formal approval?

2. Holding Council meetings at locations other than the Community Affairs Building in Trenton.

I suggested that it would be convenient for the public if the Council were to occasionally hold its meetings someplace other than the Trenton meeting room on Broad Street. I stated that the distance, traffic and (especially) the difficulty in finding parking in downtown Trenton dissuade citizens from attending meetings.

Ms. Starghill explained that a) the Council gets the DCA meeting room for free, b) that it would be unduly burdensome on the taxpayers to pay the Council's staff for the time it would take them to travel to the remote meeting and c) that the sound equipment that the Council uses for a sound amplification and recording is available nowhere but in the DCA meeting room.

I invite the Council's attention to the New Jersey State Board of Agriculture's meetings schedule, which is on-line here.

As you can see, the Agriculture Board held its December 2008, January 2009 and February 2009 meetings in Flemington, Bridgeton and Cherry Hill, respectively. While I don't know for certain, I would imagine that the Agriculture Board has staff members who attend their meetings and probably also audio-records its meetings. If the Agriculture Board can meet outside of Trenton, it would seem that the Government Records Council could also do so.

As to the issue of getting a free meeting room outside of Trenton, I believe that at least some municipalities would be willing to offer their council chambers or municipal court rooms at little or no cost. If you like, I can check with some mayors and council members with whom I'm acquainted and see if I can find free accommodations.

Finally, when I offered this suggestion to the Council, I was mindful that N.J.S.A. 47:1A-7(b) calls upon the Council, when mediating and adjudicating cases, to "act, to the maximum extent possible, at the convenience of the parties; utilize teleconferencing, faxing of documents, e-mail and similar forms of modern communication; and when in-person meetings are necessary, send representatives to meet with the parties at a location convenient to the parties."

I realize that this section requires the Council to leave Trenton only when dealing with specific complaints. But reading 7(b) as a whole suggests to me that the Legislature intended the Council to be a helpful, user-friendly organization, and that it wouldn't be inconsistent with the Legislature's vision if the Council would sometimes meet outside of Trenton so that ordinary citizens could attend the Council's meetings and learn about the Open Public Records Act.

While it is certainly within the Council's prerogative to hold all its meetings on weekday mornings at a location that offers little or no parking, I ask that the Council discuss consider having at least one of its future meetings at a location where there is free and ample parking and perhaps outside of regular business hours.

3. Having a definite and predetermined starting time for the public portion of the meeting.

As it is, the Council's public meetings official begin at 9:30 a.m. at which time the Council goes into closed or executive session. After the executive session ends, which is usually no earlier than 10:00 a.m. but sometimes as late as 10:45 or 11 a.m., the public portion of the meeting resumes.

The problem is that citizens who are willing to come to Trenton are not really sure when to arrive. Speaking for myself, I try to get to 101 S. Broad Street by 9:50 a.m., because I don't want to miss any of the meeting. But, usually, I find myself waiting in the lobby for an hour or so while the Council finishes its executive session.

During the public portion of the February 25, 2009 meeting, I suggested that perhaps there was a different way for the Council to run its meeting so that it would be more convenient for public attendees. My recollection is that Ms. Starghill stated that since the duration of executive sessions are unknown, it is impossible for the meetings to be run differently.

After thinking about it a bit, I offer a suggestion. Perhaps the Council could schedule two separate meetings, the first being held at nine o'clock and the second at eleven. At the earlier meeting, the Council would do nothing except open the meeting to the public, read the "sunshine law" statement, immediately go into closed session and then immediately adjourn the meeting. At the later meeting, the Council would open the meeting and immediately being with the public agenda.

If the Council anticipated that an executive session would take more than two hours, it could start the earlier meeting at eight o'clock or perhaps seven-thirty so that the executive session would be completed before eleven o'clock.

The advantage of this suggested system is that a member of the public would no longer have to worry about showing up too early or too late for a meeting. Rather, he or she could show up at eleven, enjoy the meeting and then be on his or her way. Also, I notice that the Council's staff are sitting around in the lobby during the executive session. I think that adopting this suggestion would allow for them to be at their desks working until the eleven o'clock meeting starts.

Thank you for your attention to this matter. I appreciate your time and look forward to your response.

Sincerely,

John Paff

P.S. I noticed that I get errors when I try to download most of the Council's 2008 public meeting minutes from the Council's Internet site. Would you please check the links?

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