Thursday, June 2, 2011

What if executive session minutes are heavily redacted due to "personnel issues" being discussed?

I recently requested executive session minutes from the Belmar Housing Authority. I believe that the minutes that I received, which are on-line here and my follow-up records request to the Housing Authority's records custodian (set forth below) might be helpful to others who confront the same problem.

If the follow-up request does not get me unredacted or properly redacted minutes, it will at least put me in a better position to file an action in Superior Court or the Government Records Council for disclosure of the minutes.

Please accept this e-mail as my request for government records in accordance with the Open Public Records Act (OPRA) and the common law right of access. Please respond and send all responsive documents to me via e-mail at paff@pobox.com. If e-mail is not possible, please fax responses and responsive records to me at 908-325-0129. Also, I would appreciate it if you would acknowledge your receipt of this e-mail.

Background:

In response to a recent request, I recently received a two-page, handwritten set of minutes from a closed or executive meeting held in "June of 2010" by the Belmar Housing Authority. (I note that the minutes are undated, even though N.J.S.A. 10:4-14 requires minutes to contain "the time and place" of the meeting.) The minutes disclose that the meeting was called "to discuss raises for the three employees. Paul Caverly, Amy Spena, Bruce Petitt." But the entire substance of the minutes was redacted. In the record custodian's June 2, 2011 handwritten letter that accompanied the minutes, he noted that the minutes were redacted, but gave no reason for their redaction.

Although "personnel matters" such as employee raises, may be discussed by a public body in executive session (see N.J.S.A. 10:4-12b8), it does not necessarily follow that the minutes of such an executive session may be kept confidential. In South Jersey Publishing Company, Inc. v. New Jersey Expressway Authority, 124 N.J. 478 (1991), the New Jersey Supreme Court found that there was "no inconsistency between the exemption allowing personnel matters to be discussed and debated in executive session and the Act's mandate that adequate minutes of ALL meetings be available to the public." (Id. at 493, Emphasis in original). Rather, the Court held that "the exemption is designed to enable the public body to determine the appropriate action to be taken, not to withhold from the public either the public body's determination or the reasons on which its determination was based." So, on the current record, it is impossible for me to tell whether or not redaction of the entire substance of the "June of 2010" executive session is justified.

Request: Another copy of the "June of 2010" executive session minutes. This time, I would like them either unredacted or more narrowly redacted so that the maximum amount of information is revealed in accordance with the South Jersey Publishing Company decision cited above. For any elements of the minutes that you believe need to remain redacted, please recognize that when denying or redacting a record, N.J.S.A. 47:1A-5(g) requires a custodian to inform the requestor of the “specific basis” for each suppressed element. Beyond stating the “specific basis” for each suppressed element, the custodian is required to “produce specific reliable evidence sufficient to meet a statutorily recognized basis for confidentiality.” Courier News v. Hunterdon County Prosecutor’s Office, 358 N.J. Super. 373, 382-83 (App. Div. 2003). Further, he or she must explain each suppression in a manner that “will enable other parties to assess the applicability of the privilege or protection.” Paff v. New Jersey Department of Labor, Board of Review, 379 N.J. Super. 346, 354-55 (2005) (quoting R. 4:10-2(e)).

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