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

Wednesday, April 22, 2009

GRC requested (again) to amend Advisory Opinion 2006-1

Following is the text of a letter I sent to the Government Records Council today following up on my earlier requests for a rule change allowing records requestors to submit requests on either the agency's specific request form or the GRC's model request form. The letter, with attachments, is on-line here.

John Paff
Somerset, New Jersey

-----

New Jersey Libertarian Party
Open Government Advocacy Project
John Paff, Chairman
P.O. Box 5424
Somerset, NJ 08875-5424
Phone: 732-873-1251 - Fax: 908-325-0129
Email: lpsmc@pobox.com

April 22, 2009

Robin Berg Tabakin, Chairwoman
Government Records Council
PO Box 819
Trenton, NJ 08625-0819
(via e-mail to grc@dca.state.nj.us )

Dear Chairwoman Tabakin and Members of the Council:

You may recall that I have corresponded with the Council numerous times seeking an amendment to Advisory Opinion 2006-1. The amendment that I seek is simple and straightforward—to change the following sentence which is presently in the Advisory Opinion:

When an agency has not adopted its own official OPRA records request form, requestors may submit their records request on the Model Request Form located on the Government Records Council website (www.nj.gov/grc/).

to

A requestors may submit a request either on the official OPRA request form adopted by the agency or on the Model Request Form located on the Government Records Council website (www.nj.gov/grc/ ).

For your convenience, I have placed our previous exchange of correspondence on this issue on the Internet here. The most recent letter I have from the Council on this issue is Executive Director Starghill’s December 5, 2007 letter in which she informs me that the Council a) is considering my suggestion but b) will not honor my request to add the issue to the December 19, 2007 meeting agenda.

I am reminded of this issue today by a response I received to an OPRA request I submitted to the Woodbridge Township Fire District #2. Attached is a copy of my request (2 pages) followed by the response I received from the Fire District’s custodian (2 pages).

As you can see, I mailed my OPRA request to the Fire District on April 10, 2009, and I noted on the face of the request that I could not find the District’s specific OPRA request form on the Internet. Twelve days later—on April 22, 2009—the Custodian faxed me the Fire District’s specific OPRA request form.

As you can see, the Fire District’s form is virtually identical to the model form that I submitted. The only difference is that the Fire District’s form has a Maltese cross in the upper right and left corners of the form, where my version of the model form has “Transparent Government is Vital” written in those spaces instead.

The Fire District’s refusal to accept the model form instead of its virtually identical adopted form is not simply an inconvenience for record requestors. Rather, it trivializes the important rights that OPRA protects. It is the ultimate exaltation of form over substance—a bureaucrat’s Monty Pythonesque inflexible (and often tongue-in-cheek) adherence to the letter of the law overcoming and frustrating the obvious intent of the law.

Do you think that there’s a possibility that the Government Records Council might consider my proposed amendment in the near future?

Thank you for your attention to this matter. I look forward to hearing from you.

Sincerely,

/s/ John Paff

cc. Woodbridge Fire District # 2 (w/o attachments)
(via Fax to 732-634-5411)

Sunday, April 19, 2009

Holding the line on indefinite OPRA due dates

I frequently get responses from custodians that tell me that I'll get my records at some later, unspecified date. Here is my response to one such custodian. I thought I'd share it in case others want to use it.

John Paff
Somerset, New Jersey

I am in receipt of your April 13, 2009 letter and the 2008 Local Government Officer Roster. As you know, you did not either grant or deny access to the records responsive to paragraphs 1 through 4 of my request. Rather, you informed me that you sent my request to the Ethical Standards Board and that “as soon as their reply is received [you] will forward it to [me].”

A records custodian cannot unilaterally extend the seven business-day response period mandated by N.J.S.A. 47:1A-5(i) simply by passing the request off to another official or board within the agency. Rather, if a custodian needs additional time to fulfill a request because adhering to the seven-day period “would substantially disrupt agency operations,” he or she needs to attempt “to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.” N.J.S.A. 47:1A-5(g).

I mean no disrespect by the above reminder, but I’ve been in the record-requesting business for a long time and remember the frustrating days when the Right to Know Law—OPRA’s predecessor—was the law. It didn’t have any time period within which a custodian needed to response to a request and requests were often simply ignored. OPRA’s enactment—with its mandatory seven business-day response period—was a hard-fought battle, and I’m not inclined to let the fruits won in that battle slip away.

So, if you need an extension, that’s fine—I’m flexible. But I want to establish a definite due-date. Your response, which basically says that I’ll get the records whenever the Ethical Standards Board gets around to giving them to you, is simply unacceptable. I suggest establishing a deadline of Friday, April 24, 2009. Is that date OK with you? Please let me know via e-mail or fax.

Thursday, April 9, 2009

Dealing with non-specific OPRA denials

Sometimes, particularly with law enforcement records requests, I receive responses that generally deny my request but fail to provide me with a list of the records to which I am being denied.

For example, I recently asked the Camden County Prosecutor's Office for "any police reports, incident reports, witness statements or other writings" that pertained to a specific arrest. The Prosecutor's response was only that the records responsive to my request, if they indeed existed, would be exempt from access.

My reply to the Prosecutor's office is on-line here. I am posting this letter because it may be helpful to others who have encountered similar denials.

The thrust of my letter to the custodian is: a) if I were to file a Denial of Access Complaint with the Government Records Council (GRC), the GRC would require you to identify each record within the scope of my request regardless of whether it is exempt, and b) since I could require you to describe and identify each responsive record simply by filing a (free) GRC complaint, why don't we all save ourselves a lot of time, effort and expense by you simply providing me with the list of responsive records without me having to file a complaint.

John Paff
Somerset, New Jersey

Appellate Division requires specificity in OPRA requests

In a published decision released today, the Appellate Division agreed with the Government Records Council that John Bart's request for records was not specific enough.

Bart had requested the Passaic County Public Housing Agency to provide him with the agency's signs "currently posted in conformance with N.J.S.A. 47:1A-5(j)." In other words, Bart wanted the signs that OPRA requires every agency post to inform citizens that they have a right to appeal from an OPRA denial.

The Appellate Division ruled that because he referred to a statutory citation, Bart's request "required the Agency's custodian of records to undertake some legal research and analysis in order to identify the signs to which Bart was referring." Since custodians are not required to "engage in legal research or consult an attorney in order to identify the records being requested," the court reasoned, Bart's request was not specific enough.

The decision is available here.

This case is disturbing because it apparently allows unscrupulous custodians to deny records by feigning ignorance of laws that they ought to be familiar with.

John Paff
Somerset, New Jersey

Wednesday, April 8, 2009

Some Local Finance Board decisions on the Internet

I have collected some decisions that apply and interpret the Local Government Ethics Law and have placed them on-line here.

As time permits, I will add more decisions to the site.

Most of these decisions, while technically "public," reside in the Local Finance Board's offices in hard-copy form and are not readily available. I believe that these decisions have value, because they can help people understand how the Local Finance Board rules on an issues. For example, if a person questioned the propriety of a municipality attorney supporting and contributing the campaigns of the public officials who appoint the attorney, he or she may benefit by reading the February 18, 2009 decision regarding Hamilton Township in Atlantic County. (Click here)

I hope that readers find this information useful.

John Paff
Somerset, New Jersey

Thursday, April 2, 2009

OPRA/OPMA court order issued in Sussex County

On March 16, 2009, Assignment Judge B. Theodore Bozonelis issued an Order in the case of Jesse Wolosky v. Township of Vernon, Sussex County, Docket No. L-079-09. Out of four issues presented, the plaintiff won two issues, lost one issue, and is mediating the remaining issue. The plaintiff was also ruled to be the prevailing party and shall recover at least some of his attorney fees and court costs from the Township. The order is available here.

An interesting aspect of the Order is that Vernon Township is required to pass an ordinance that will require the Township Council to approve and release at least redacted versions of its executive session minutes at the next meeting after the executive session took place. The ordinance will also require the Township Council, at each meeting, to review a log of all the redactions to past executive session minutes and decide whether the passage of time or the occurrence of events allows the redacted portions to be disclosed.

Plaintiff Wolosky was represented by attorneys Walter M. Luers and Jonathan E. McMeen. Vernon was represented by Michael D. Witt.

John Paff
Somerset, New Jersey