Sunday, April 25, 2010

Remedying meager executive session minutes

Every now and then a member of a political party or faction gets elected to a public body that has long been unanimously controlled by the opposite party or faction. Typically, the majority party, not being appreciative of political diversity, reacts by giving the newly elected member that which it gives the general public--restricted or suppressed access to meaningful information. The newly elected member soon finds himself or herself "out of the loop" and unable to effectively participate in the deliberative process.

One way in which the political majority deprives the public of meaningful information is to purposefully record vague and incomplete minutes of the body's executive sessions. Last year, I wrote a post suggesting that minority members seek to audio-tape the executive sessions as a way of building a better record of what actually occurred during the closed meetings. This post is available here.

The few minority members who tried to implement the audio-taping procedure were met with strong--almost hostile--reactions from the body's majority and attorney. In one Bergen County borough, the municipal attorney wrote that "taping [executive sessions] could constitute a violation of the Borough's Policy and therefore subject that individual to punishment [under New Jersey's Wiretapping and Electronic Control Act, N.J.S.A. 2A:156A-1 et seq.]. Unfortunately, even if the attorney's conclusions were not well grounded, the implied threat of criminal prosecution was enough to dissuade that borough's council minority members from actually audio-recording the executive sessions.

So, I am trying to come up with another, safer method that will publicly reveal more of what goes on during executive sessions. My new--and hopefully better--idea is for the minority member of the public body to record his or her own written notes of each executive meeting and to submit them to the body so that they become and official record subject to the Open Public Records Act.

This idea is illustrated by the following hypothetical letter to the municipal clerk from a council-person who is the sole council member from the political minority. Readers who serve as a political minority member on a public body may want to consider sending something similar to their body's custodian of public records.

John Paff
Somerset, New Jersey

Dear Clerk:

I've just reviewed the minutes of the council's April 5, 2010 executive session. As you know that session lasted about one hour and fifteen minutes. Therefore, I am astonished to find that the minutes of this closed discussion consist of only the following two sentences: "The mayor and council discussed the lawsuit of Smith v. Town. The municipal attorney said that he would keep the council updated on the suit at future meetings."

It is not clear whether or not the minutes' meager description satisfies the Sen. Byron M. Baer Open Public Meetings Act's requirement that meeting minutes be "reasonably comprehensible." (See, N.J.S.A. 10:4-14 and cases such as Township of Bernards v. State, Dept. of Community Affairs, 233 N.J.Super. 1, 28 (App. Div. 1989)). Accordingly, in order to provide the public with more information and context regarding the discussion at the meeting, attached to this letter is a document entitled "Councilwoman Smith's notes from the April 5, 2010 executive session." As you can see, this document contains my personal notes from that meeting and are much more detailed and comprehensive than the meeting's official minutes. It is now my policy to send similarly detailed documents to you reporting on every council executive session for as long as my term on the town council lasts.

In addition to sending this document to you, I have also informed interested town citizens, both individually and through postings on various Internet forums and blogs, a) that I have sent the town clerk my comprehensive notes from the April 5, 2010 executive session and b) that they can obtain a copy of my notes by submitting an Open Public Records Act (OPRA) request to your office requesting a document entitled "Councilwoman Smith's notes from the April 5, 2010 executive session."

I realize that portions of the attached document might be confidential and need to be redacted before the document can be publicly disclosed. Thus, if you receive an OPRA request for this document, you "shall delete or excise from a copy of the record that portion which the custodian asserts is exempt from access and shall promptly permit access to the remainder of the record." N.J.S.A. 47:1A-5(g). This way, the requestor will receive, at a minimum, a heavily redacted version of my notes.

Having a comprehensive account of the April 5, 2010 closed meeting, even if it is heavily redacted, is more useful to a member of the public than the sparse official minutes. As you are aware, as time passes, lawsuits settle and other events unfold, the town's need for confidentiality in the April 5, 2010 private discussions will decrease. Thus, while a citizen who requests my notes tomorrow may be entitled to only a heavily redacted version, the citizen who requests my notes six months or a year from now will probably be entitled a more narrowly redacted--or perhaps even an unredacted--version.

Also, any requestor who wishes to challenge the scope of the redactions applied to my notes can do so by filing an action in the Superior Court or the Government Records Council (GRC). The court or the GRC will be able to review in camera an unredacted version of my notes and will rule on whether or not the redactions have been too generously applied. And, either the court or the GRC can order the town to pay the requestor's attorney fees if the redactions are found to have been too broadly applied.

There are only two copies of the attached document in existence: a) the one that is attached to this letter and b) my copy, which is stored under lock and key by me. Since the copy that I have in my files, which I will keep permanently, is a "government record" as that term is defined by OPRA ("Government record" . . . means any . . . document . . . that has been made . . . in the course of . . . official business by any officer" of a government agency. N.J.S.A. 47:1A-1.1.), any citizen can continue to request it even if the town has destroyed the enclosed copy because the applicable retention period has expired.

Rest assured that I will never share the contents of the attached document with anyone. If I receive a request for the attached document, I will refer to the requestor to your office.

Sincerely,

Councilwoman Hannah Smith

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