Thursday, April 30, 2009

How long before a meeting must an agenda be available?

The following question often arises:

How long before a meeting must a public body make its meeting agenda available to the public? My town council has an annoying habit of not preparing its meeting agendas until about a half hour before the meeting starts. This makes it impossible for people to prepare their comments and questions for the council.
At first blush, it would appear the the Open Public Meetings Act, N.J.S.A. 10:4-8(d), which defines "adequate notice," requires the public body to provide the public with its agenda at least 48 hours before the meeting. N.J.S.A. 10:4-8(d) states:

"Adequate notice" means written advance notice of at least 48 hours, giving the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting, which notice shall accurately state whether formal action may or may not be taken and which shall be [for brevity, I've deleted the lengthy details on how the notice needs to be published and posted.] Where annual notice or revisions thereof in compliance with section 13 of this act 10:4-18 set forth the location of any meeting, no further notice shall be required for such meeting.
But, the last sentence of that definition exempts any public body from giving 48 hours advance notice of its agenda "to the extent known" if the public body has already published its annual meeting schedule at the beginning of the year. Since the vast majority of public bodies publish an annual schedule, they are exempt from having to making any further meeting publications unless they opt to have a special meeting.

In 1983, the New Jersey Supreme Court confirmed this understanding in Witt v. Gloucester County Board of Chosen Freeholders, 94 N.J. 422, 466 A.2d 574. In this case, the court stated:

Furthermore, we disagree with the conclusion of the Appellate Division that a public body that has complied with the annual notice requirements of N.J.S.A. 10:4-18 must also comply with the forty-eight-hour notice requirements of N.J.S.A. 10:4-8 d. One purpose of the Open Public Meetings Act is to ensure the right of “citizens to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed or acted upon in any way ....” N.J.S.A. 10:4-7. Pursuant to that declaration, the act defines “adequate notice” as “written advance notice of at least 48 hours, giving the time, date, location and, to the extent known, the agenda” of a meeting. N.J.S.A. 10:4-8 d. The same section continues, however, by stating that “[w]here annual notice or revisions thereof” in compliance with the pertinent provision of the act, N.J.S.A. 10:4-18, “sets forth the location of any meeting, no further notice shall be required for such meeting.”

When read together, these sections provide that “notice of at least 48 hours” in compliance with N.J.S.A. 10:4-8 d is required only in those situations where the public body has failed to provide annual notice that sets forth the location of the meeting and is otherwise in compliance with N.J.S.A. 10:4-18.

The Appellate Division's failure to differentiate between the notice requirements of N.J.S.A. 10:4-8 d and those of N.J.S.A. 10:4-18 stems from that court's misperception that the act requires the publication of an agenda for all regularly scheduled public meetings. Publication of an agenda, however, is required only in those instances where no annual notice has been provided in accordance with N.J.S.A. 10:4-18. Consequently, the Appellate Division erred by concluding that forty-eight-hour notice in compliance with N.J.S.A. 10:4-8 d is required where the annual notice requirements of N.J.S.A. 10:4-18 have been satisfied.
It appears therefore that nothing in the Open Public Meetings Act, or any other law that I'm aware of, prevents public bodies from adopting a practice of not preparing their agendas until just before a meeting begins.

But, there is a possible ray of hope.

The question that needs to be asked of a public body that has adopted this onerous policy is: "While I understand that you will not give a meeting agenda to a member of the PUBLIC until a few minutes before a meeting, when do the members of the PUBLIC BODY first get a copy of the meeting's agenda?"

Suppose that the public body concedes that it provides agendas to its members forty eight hours before meetings but doesn't give the agendas to the public until the meeting begins. Then, it could be argued that the agendas--being public records under OPRA--should be made available to the public upon request.

The problem with this argument, however, is that meeting agendas are not among the categories of records for which N.J.S.A. 47:1A-5(e) provides that "immediate access ordinarily shall be granted." Thus the public body's custodian could delay responding to the request until, say, three days after it was submitted thus delaying production of the agenda until after the meeting.

But, one court--in an unpublished decision--held that a school board's refusal to fax a newspaper reporter copies of its meeting agendas and instead make the reporter go to the board's office in person to pick up the agendas violated OPRA. The relevant documents in that case--Press of Atlantic City v. Greater Egg Harbor Regional High School District, Atlantic County, Docket No. L-430-05--are on-line here.

In sum, if a public body does not prepare its agendas until just before its meetings, there is little likelihood that a court would force them to prepare its agendas earlier. But, if the agendas are prepared well in advance of the meetings and given to the body's members but withheld from the public, then an argument could be made--based on the Press of Atlantic City decision--that citizen or media requestors are entitled to have the agendas e-mailed or faxed to them.

I realize that the Press of Atlantic City decision isn't binding, so other courts need not follow it. I also realize that the decision would be of limited utility if a custodian agreed to fax or e-mail agendas out to requestors a half hour before a meeting but not earlier. Still, the decision is a starting point that may help persuade other judges to require public bodies to give citizens their meeting agendas a reasonable amount of time before the meetings start. Anyway, it's the only positive decision on this issue that I can locate.

John Paff
Somerset, New Jersey

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