Monday, June 29, 2009

Atlantic County Insurer Group issues "OPRA Bulletin."

On June 26, 2009, the Atlantic County Municipal Joint Insurance Fund Association (ACMJIFA) sent an "OPRA Bulletin" to the clerks of approximately forty member municipalities regarding Mercer County Assignment Judge Linda Feinberg's May 21, 2009 unpublished opinion in Getts v. Mercer County Clerk's Office (Docket No. MER-L-696-07).

(The Getts opinion is here and the clerks who received the Bulletin are identified here.)

As previously reported here, Feinberg held that OPRA requires custodians to charge citizens the ACTUAL COST for photocopying records and that the 75c/50c/25c copying fee schedule merely establishes a MAXIMUM COST for records. In other words, according to Feinberg, if it costs the town a nickle to make a copy, the clerk has to charge requestors a nickle for a copy and it is irrelevant that the OPRA statute sets a maximum charge of seventy-five cents. My original posting on the Getts decision is here.

In its Bulletin, the ACMJIFA said that while Feinberg's opinion is nonbinding, it is "highly likely that this determination will become law." The Bulletin goes on to say that "what that means is that public entities are still permitted to charge the maximum rate permitted by the Statute; however, if and when the law changes, there may be applications for refunds if you in fact charged more than the actual costs."

The Bulletin also advises that when responsive documents are sent to a requestor via e-mail attachments, the ACMJIFA "recommend[s] that there should be no charge. The Bulletin is on-line here.

Saturday, June 27, 2009

Favorable settlement in OPMA/OPRA case against Howell Township

In August 2008, I filed a five count pro se lawsuit against Howell Township in Monmouth County. On June 27, 2009, I received in the mail a signed Consent Judgment that resolved the first three counts of the complaint. The other two counts are still pending.

My Amended Complaint and the Settlement Agreement are on-line here.

Also, I've posted the May 6, 2008, May 20, 2008 and July 15, 2008 Howell Township Council's executive session minutes, in both redacted and unredacted form, here.

Following is a summary:

FIRST COUNT

I complained that the Township Council's closed session resolutions were too vaguely worded. For example, the June 10, 2008 resolution stated that the Council was going to privately discuss "Litigation, Personnel, Attorney Client Privilege." In the Consent Order, the Township, without admitting wrongdoing, agreed, going forward, to "set forth [within its executive resolutions] as much information about the topic(s) to be privately discussed that can be disclosed without undermining the N.J.S.A. 10:4-12(b) exception that authorized the topic(s) to be discussed in private."

SECOND COUNT

I complained that the Council, during its May 20, 2008 executive session, discussed an issue that ought to have been discussed in public--the formation of a COAH Advisory Board. In the Consent Order, the Township, without admitting wrongdoing, agreed, going forward "to carefully separate those issues that are eligible for nonpublic discussion in accordance with N.J.S.A. 10:4-12(b) from those that are not, and that in making this separation, the Council shall strictly construe the N.J.S.A. 10:4-12(b) exceptions against closure and in favor of openness in accordance with the decisions of the Superior Court regarding this issue."

THIRD COUNT

I complained that the Clerk, when explaining why certain matters were redacted, didn't explain the redactions in enough detail to make is possible for me to determine whether or not the redactions were properly applied. For example, the Clerk might explain why a large block of text was redacted by simply stating "Attorney Client Privilege." In the Consent Order, the Clerk, without admitting wrongdoing, agreed, going forward, "to provide a requestor of government records that are exempted and or redacted, in whole or in part, with a exemption/redaction index that provides: a) the legal basis for each suppression or redaction together with b) additional information to enable the requestor to understand the nature of the suppressed or redacted material and why it was redacted."

John Paff
Somerset, New Jersey

Friday, June 26, 2009

Level of "personnel" details in executive session resolutions

A question I received from a correspondent:

When a public body goes into executive session to privately discuss a "personnel" issue, how much detail on the personnel issue being discussed needs to appear in the resolution that authorizes the executive session? For example, it is permissible for the resolution to simply say that "personnel issues" are going to be discussed, or should it say something more, such as "personnel issues regarding a public works employee" or even "disciplinary issues regarding Mary Smith, a public works employee" are being discussed?

My response:

I have never seen a court decide this question, but I have convinced several municipalities, in consent judgments, to adopt the following rule on how to decide this thorny question: The governing body shall, in the normal case, disclose as much information in its executive session resolution about a personnel matter that the body's attorney predicts will be publicly disclosed about the same personnel matter when the executive session minutes are later released.

I base this rule on the New Jersey Supreme Court's decision in South Jersey Publishing Company, Inc. v. New Jersey Expressway Authority, 124 N.J. 478 (1991). This case held that a) the public needs information if it is properly fulfill its role of evaluating the wisdom of governmental action or a decision not to act, b) that New Jersey's strong public policy requires that a public body’s actions and decisions to not act be disclosed in the body's closed meeting minutes along with sufficient facts and information to permit the public to understand and appraise the reasonableness of the body's determination, and c) to the extent a cognizable privacy interest may be compromised by the required disclosure, the extent of disclosure may be modified through redactions of the minutes, provided the public interest in disclosure is not subverted

Accordingly, my position is that if the public body is going to publicly identify the name of the employee under discussion and the reason why he or she was being discussed in the body's executive meeting minutes, when the nonexempt portions of those meeting minutes are released (perhaps thirty days after the meeting), there is no compelling need withhold the same information from the public when the meeting is held.

For example, suppose that a Borough Council goes into closed session on July 1, 2009 to discuss whether Mary Smith, a public works employee, ought to be disciplined for repeatedly arriving late to work. If the nonexempt portions of the executive meeting's minutes, which will be "promptly" disclosed on or before August 1, 2008, are going to inform the public that the Council decided to discipline (or not discipline) Mary Smith for habitual lateness, it doesn't seem to serve any legitimate public purpose to tell the public, in the July 1, 2009 executive resolution, only that a "personnel" matter is going to be discussed.

It seems to me that if the public is going to know who was being privately discussed and why they were being privately discussed in a month's time, there's no compelling reason for depriving the public from knowing the name of the employee and the nature of the discussion before the discussion takes place. While I'm certain that Mary Smith isn't going to be thrilled that everyone in town will know that discipline is being considered because of her habitually lateness to work, it's not going to be substantially less embarrassing for her if the public knows this information on August 1st instead of July 1st.

I'm not arguing that an employee can never have a legitimate privacy interest in issues touching upon his or her employment. If, suppose, a municipal council wanted to discuss giving employee John Doe an extended leave of absence because he has dread disease, his interest in keeping his disease private would appear to easily exceed the public's interest in knowing this very personal information. Further, I'm not even arguing that the public's interest in knowing about every routine disciplinary case, such as Mary Smith being dunned for habitual lateness, will always exceed the employee's right to privacy.

Rather, all I am saying is that a skilled municipal attorney who is aware that a certain personnel matter is going to be privately discussed, ought to be able to apply the South Jersey Publishing case's standard to that personnel matter and fairly accurately predict the level of detail that the private meeting minutes will disclose when the nonexempt parts of those minutes are released the following month.

If the attorney predicts that the employee's identity and the nature of discussion will be publicly identified in the upcoming minutes, then I assert that in the normal case, the public's interest in knowing that information now, instead of a month from now, is greater than the employee's interest in keeping that information under wraps for another month. Conversely, if the attorney predicts that the employee's privacy interests warrant less information to appear in the minutes, then less information ought to also appear in the corresponding executive resolution.

John Paff
Somerset, New Jersey

Favorable outcome in Paff v. Port Republic

During a thirty-minute hearing today, June 26, 2009, Atlantic County Assignment Judge Steven P. Perskie ruled that the City of Port Republic did not abide by the Open Public Meetings Act when it failed to issue even redacted versions of its January 2008 closed session minutes when I requested them in August 2008.

The vast bulk of the discussion during the hearing was between Judge Perskie and Port Republic's attorney, Salvatore Perillo, Esq. (who also serves as the Mayor of Ocean City, New Jersey). I needed to say very little.

Judge Perskie became somewhat exasperated when Mr. Perillo didn't or wouldn't understand the precise issue that was before the court. Mr. Perillo kept arguing that the fact that the Clerk had promptly sent me a resolution identifying the topics discussed during executive session provided me with sufficient information and that I had no real need for the redacted minutes themselves. Judge Perskie correctly stated that the issue was whether the OPMA requires timely access to executive meeting minutes even if those minutes need to be heavily redacted to protect legitimate governmental objectives.

After Mr. Perillo's pressed the same irrelevant argument several times, Judge Perskie asked "which one of us is Abbott and which is Costello?"

The judge appeared inclined to sign the form of order that I had submitted with my cross motion. He also said that Port Republic is to reimburse me my cost of suit. The motion paperwork is on-line here.

John Paff
Somerset, New Jersey

Wednesday, June 24, 2009

Recording citizen comments in meeting minutes

I received the following question:
"I spoke during the public portion of a local board of education meeting and specifically requested that the concern I raised be recorded in the meeting's minutes. The Board secretary refused to do so and said that the required elements to be included in the minutes are time, attendance and votes on resolutions (actions taken) and that anything else that may appear in the minutes is subject to the board's discretion. Is this legal?"
I don't have a definitive answer. In an attempt to shed light on this question, I've located three Appellate Division decisions and one trial level decision on the issue and have quoted from them below. The decisions, especially the second and third ones, are not very hospitable toward minutes having to include anything more than the bare minimum.

But, in the Liebeskind decision (see below), the court ruled that it was an OPMA violation for the governing body to not include the fact that the plaintiff submitted a written objection to a proposal that was discussed at a meeting. Also, the Liebeskind court seems to say that a public body ought to at least include the names of citizens who spoke at a meeting even if it is not required to summarize what each citizen said.

Also the South Jersey Publishing case (quoted in Liebeskind below) requires a bit more detail and specificity to be included in the minutes when a personnel matter is decided. I read the Liebeskind decision as refusing to extend the South Jersey Publishing ruling to minutes that record matters other than personnel matters.

It is also worth noting that each of the appellate decisions dealt with applications to void out, in accordance with N.J.S.A. 10:4-15, an action taken by the public body. My thought is that a court may be more accommodating if more verbose minutes were requested by way of an application for injunctive relief in accordance with N.J.S.A. 10:4-16.

I think that more litigation needs to be brought to resolve the question of exactly what level of detail regarding citizens' public comments needs to be recorded in the meeting minutes. As an alternative, we can work to enact Sen. Loretta Weinberg's bill--S1548--which will specifically require meeting minutes to include "the identity of each member of the public who spoke and a summary of what was said."

John Paff
Somerset, New Jersey

CASE NO 1.

The following is taken from pages 400 through 402 of the Appellate Division's 1993 published decision in Liebeskind v. Mayor and Mun. Council of Bayonne, 265 N.J.Super. 389.

N.J.S.A. 10:4-14 requires the public body to keep “reasonably comprehensible minutes.” This does not mean word for word recitation of every event or a verbatim detailing of every public comment or objection. The cases cited by plaintiff in support of a contrary view do not advance his cause. In Battaglia v. O'Brien, 59 N.J.Super. 154, 171-72, 157 A.2d 508 (App.Div.1960), minutes of a zoning board of adjustment variance hearing were missing entirely, thus precluding any meaningful review. Similarly South Jersey Publishing Co., Inc. v. New Jersey Expressway Auth., 124 N.J. 478 (1991), no minutes were available at all because the authority acted in a private meeting. It was in this context that the Supreme Court utilized the language which plaintiff here relies on: “The minutes are intended to recite and disclose any official decision or action taken by a public body, and necessarily must contain sufficient facts and information to permit the public to understand and appraise the reasonableness of the public body's determination.” Id. at 493.

This does not mean that the public body must reveal the reasons why it took the legislative action that it did. Township of Bernards v. State, Dept. of Community Affairs, 233 N.J.Super. 1, 28, 558 A.2d 1 (App.Div.), certif. den. 118 N.J. 194-95, 570 A.2d 959 (1989). N.J.S.A. 10:4-14 simply requires that what took place at the meeting and what final action was taken should be reflected in the minutes. Here, what actually occurred at the meeting was that plaintiff submitted a letter objection to the proposed ordinance. Despite this, the minutes reported that no objections had been filed with the clerk. The minutes should have been corrected to reflect the receipt of plaintiff's letter and we so order. Other than this, we see no reason to intervene. The minutes indicated the action contemplated; declared who was present at the meeting; recited public notice; reflected who moved and seconded the resolution to amend the 1976 salaries ordinance; stated the names of the public participants, and recounted which council members voted in favor of passage of the amendment. We are satisfied that these minutes adequately reflect what transpired at the meeting and that a citizen of Bayonne who reviewed the minutes along with the ordinance, which included a new salary schedule with retroactive effect, would fully understand what had occurred. That is all that is required by N.J.S.A. 10:4-14.

CASE NO 2.

The following is taken from the Appellate Division's 2006 unpublished decision in Albano v. City of Vineland (2006 WL 3626766). The court considered a citizen's challenge to a redevelopment ordinance that permitted a Wal-Mart to be built. One of the citizen's arguments was that one of council members, James Forcinito, whose son worked at Wal-Mart, commented on his son's employment at a public meeting but that the Council failed to record that comment in meeting minutes. Thus, the citizen challenger argued that the meeting minutes were not "reasonably comprehensible" as required by N.J.S.A. 10:4-14. The court held:

Finally, plaintiffs assert that the adoption of the amendments to the redevelopment plan should be voided due to a violation of the Open Public Meetings Act (the Act), N.J.S.A. 10:4-6 to -21. The comments made by Councilman Forcinito during the May 10, 2005 City Council meeting were not placed in the minutes taken for that meeting. Plaintiffs argue that this violated the section of the Act requiring: "Each public body [to] keep reasonably comprehensible minutes of all its meetings showing the time and place, the members present, the subjects considered, the actions taken, the vote of each member, and any other information required to be shown in the minutes by law, which shall be promptly available to the public ..."

"Reasonably comprehensible" does not mean "word for word recitation of every event or a verbatim detailing of every public comment or objection." Liebeskind v. Mayor and Mun. Council of Bayonne, 265 N.J.Super. 389, 400-01 (App.Div.1993). Rather, N.J.S.A. 10:4-14 "simply requires that what took place at the meeting and what final action was taken should be reflected in the minutes." Id. at 401. The minutes satisfy the statutory requirement, and accordingly there was no violation of the Act. Therefore, Judge Forester properly held that Council did not violate the Act by failing to include Councilman Forcinito's comment about his son's employment at Wal-Mart.
CASE NO 3.

The following is taken from page 28 of the Appellate Division's 2006 published decision in Township of Bernards v. State, Dept. of Community Affairs, 233 N.J.Super. 1

Cherry Hill's next contention is that COAH did not keep “reasonably comprehensible” minutes, required by N.J.S.A. 10:4-14.

N.J.S.A. 10:4-14 states that "[e]ach public body shall keep reasonably comprehensible minutes of all its meetings showing the time and place, the members present, the subjects considered, the actions taken, the vote of each member and any other information required to be shown in the minutes by law...."

The elements required to make the minutes “reasonably comprehensible” are listed in the section. Although Cherry Hill claims that much more is needed, specifically, the reasons why the members voted as they did, we disagree. COAH has done all that the statute required it to do in recording its minutes.
CASE NO. 4

In Martin O'Shea's case against West Milford Township, Judge Passero in an unpublished trial level ruling in Passaic County, remarked that if a citizen makes a comment or asks a question during the public portion of a meeting, at least the subject of the citizen's comment or question should be recorded in the minutes. Otherwise, there would be no way of proving by way of the minutes that the body was on notice of a particular issue. See pages 14-15 of the transcript which is on-line here.

OPMA hearing on Friday, June 26th, in Atlantic City

On Friday, June 26th, at 9 a.m., the attorney for the City of Port Republic and I will argue our cross motions for summary judgment. Our argument will be heard by Judge Perskie in Atlantic County and both the attorney and I will be participating by speaker-phone. I have been assured, however, that the argument will be conducted in open court, so anyone who wishes to listen to it and Judge's Perskie's decision may attend the hearing.

The issue is a familiar one: How "promptly" must the Port Republic City Council publicly disclose at least redacted versions of its executive session minutes?

The facts of the case are: 1) I submitted an OPRA request in August 2008 for the minutes of two City Council executive sessions held in January 2008; 2) I was initially denied access to the minutes and was provided with redacted versions in November 2008, after I filed suit and had filed a motion demanding that at least redacted versions of the minutes be given to me.

My argument is a) that providing redacted minutes nearly ten months after the meetings and nearly three months after they're requested is not "prompt" as defined by N.J.S.A. 10:4-14; and b) that the Court needs to balance the public's interest in disclosure against the City's administrative burdens and establish a standard time period within which the public can expect minutes to be produced.

Port Republic's argument, the best that I can understand it, is a) that the redactions it made to the executive minutes were authorized, and b) that because I eventually received properly redacted minutes, "the issue of promptness is moot." I have vigorously argued that Port Republic's argument is irrelevant and completely misses the point of the relief I am seeking.

The motion paperwork is on-line here.

John Paff
Somerset, New Jersey

Monday, June 22, 2009

New Jersey cases regarding "prompt" public access to meeting minutes

The Sen. Byron M. Baer Open Public Meetings Act (N.J.S.A. 10:4-14) requires public bodies to make their meeting minutes "promptly available." But, what does this mean?

Here are the cases that I know about that shed some light on this question.

PUBLISHED DECISIONS:

Liebeskind v. Mayor and Municipal Council of Bayonne, 265 N.J. Super. 389, 394-395 (App. Div. 1993). 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."

Matawan Regional Teachers Association v. Matawan-Aberdeen Regional Board of Education, 212 N.J.Super. 328 (Law Div. 1986). The court interpreted the statutory requirement of making the minutes available “promptly” in light of the Meetings Act’s policy “favoring public involvement in almost every aspect of government.” Id. at 330. The court held that making minutes promptly available implements the Act’s overall purpose by, among other things, “[p]roviding all persons with the opportunity to take action prior to the next meeting of the public body.” Id. at 331.

UNPUBLISHED DECISIONS:

1. O'Shea v. West Milford Township Council, et al, (Passaic County, Docket No. L-2229-04, Passero, A.J.S.C.) Public minutes to be publicly disclosed 48 hours prior to the next meeting. For case documents, click here.

2. O'Shea and Paff v. Kearny Board of Education, (Hudson County, Docket No. L-856-07. O'Shaughnessy, J.S.C.) Public minutes to be disclosed three business days prior to the next meeting. For case documents, click here.

3. Kanter v. Mountain Lakes Borough Council (Morris County, Docket No. L-2388-07, Bozonelis, A.J.S.C.) Drafts of public minutes need to be disclosed two business prior to the next meeting. For case documents, click here.

4. Paff v. Dover Township a/k/a Toms River Township (Ocean County, Docket L-2165.07, Grasso, A.J.S.C. Nonpublic (closed or executive) minutes need to be available for the next council meeting (transcript page 10) but then changed his mind to make it 30 days (page 14). For case documents, click here. The transcript of the hearing before Judge Grasso is on-line here.

5. Paff v. Keyport (Monmouth County, Docket No. L-3317-07, Lawson, A.J.S.C.) Nonpublic and public minutes need to be made public within 30 days after a meeting or prior to the next scheduled meeting, whichever comes first (See, paragraph 2 of the Order at the link below. Also, see decision page 23, which is the 18th page of the PDF at the following link). For case documents, click here..

6. Paff v. Absecon et al (Atlantic County, Docket No. L-3392-08, Perskie, J.S.C.) Nonpublic and public minutes need to be made public within 30 days after a meeting or prior to the next scheduled meeting, whichever comes first. For signed Order, click here.

7. Wolosky v. Vernon, (Sussex County, Docket No. L-79-09, Bozonelis, A.J.S.C.) Nonpublic meeting minutes must be redacted and approved at the next meeting and released to the public the day after the meeting. For signed Order, click here.

John Paff
Somerset, New Jersey
Last updated: 08/06/10

Monday, June 15, 2009

GRC: Do you REALLY need these records? If so, be prepared to wait.

Attorney Walter Luers published a June 15, 2009 letter he received from the Government Records Council (GRC) which illustrates the trouble the GRC is having handling cases promptly. The letter, authored by GRC Case Manager John E. Stewart, and from which Luers removed information that identified the complainant, is on-line here.

After noting that the case's most recent manager is "no longer employed by the GRC," Stewart bluntly asks Luers if his client will withdraw the complaint. As Stewart puts it, "the passing of time [might] obviate the need for the requested records." Translation: "We're wondering if the GRC's failure to promptly handle your case has caused you to lose interest in the outcome."

Then, Stewart makes it clear that if Luers' client isn't willing to withdraw, he or she might be in for a long wait. Stewart writes: "As of today, I have about fifty six (56) cases pending adjudication and approximately five (5) cases are cleared each month, so it may take some time before I reach your case." So, it looks like it will take about another year for the case to be adjudicated.

OPRA promises that "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State." But, if you need to enforce your rights to this "ready" access, you may be better off taking your case to Superior Court and not to the Government Records Council.

John Paff
Somerset, New Jersey

Friday, June 5, 2009

Balancing privacy interests under OPRA

In an unpublished decision released June 5, 2009, the Appellate Division balanced the SCPA's interest in compiling a list of all dog owners in Absecon (Atlantic County) New Jersey against the dog owners' interests in keeping information they provided to the city confidential.

Following the Supreme Court's recent decision in Burnett v. Bergen County, the court held that, under OPRA, the competing interests needed to be balanced according to the seven-prong test established by the Supreme Court in Doe v. Poritz.

Applying that test, the Appellate Division reversed the trial court after finding that "the twin aims of public access and protection of personal information favor disclosure of the names and addresses of individuals possessing dog licenses issued by the City."

Having found that the Plaintiff was entitled to the records under OPRA, the court declined to reach the common law and state civil rights act claims. The matter was remanded to the trial court to determine the plaintiff's entitlement to attorney fees.

The decision is on-line at http://www.judiciary.state.nj.us/opinions/a3047-07.pdf

The prevailing attorney was Donald M. Doherty, Jr. and the Absecon was represented by Michael J. Blee.

John Paff
Somerset, New Jersey