Wednesday, May 30, 2012

GRC asked to settle two issues

In separate complaints filed in May 2012, I have asked the Government Records Council (GRC) to settle and clarify two Open Public Records Act (OPRA) issues.  Attorney Walter Luers is representing me in both cases.

This case involves a records custodian who produced, in response to an OPRA request, heavily redacted versions of closed (i.e. executive) meeting minutes, but failed to explain the reasons for the redactions in enough detail to allow me to judge whether or not the redactions were justified.  Current case law, Paff v. New Jersey Department of Labor, Board of Review, 379 N.J. Super. 346, 354 (App. Div. 2005) holds that custodians are required to provide detailed reasons that "will enable other parties to assess the applicability of the privilege or protection."  But, that decision doesn't require the custodian to provide those detailed reasons until after a Denial of Access Complaint has been filed.

We argue that it would make a lot more sense to require custodians to provide detailed justifications in their original responses to the request.  Such would enable requestors and their lawyers to better evaluate whether or not to challenge the redactions by filing a complaint with either the Superior Court or GRC.  As it is, requestors who encounter unexplained, heavy redactions do not possess enough information to allow them to make an informed decision as to whether or not a Denial of Access complaint should be filed.

This case involves a records custodian who has adopted a "no electronic submission" policy, disallowing OPRA requests to be filed by either e-mail or fax.  The leading case on this topic is Paff v. City of East Orange, 407 N.J. Super. 221 (App. Div. 2009) which allowed East Orange to refuse to accept requests via fax.  But, in that decision, the Appellate Division held that East Orange's no-fax rule was not unreasonable because the City still "allowed submission by mail or ‘electronically.’“ Id. at 229.  Accordingly, a question exists as to whether it is reasonable for a custodian to forbid both common forms of electronic submission (i.e. fax or e-mail) leaving requestors with regular mail and hand delivery as their only options.  We argue that a "no electronic submission" policy is opposed to N.J.S.A. 47:1A-5(g) which expressly permits “a request for access to a government record [to be] hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian.”   We also argue that it is not reasonable to presume that the New Jersey Legislature, which was aware of Internet technology when OPRA was enacted, to have intended to restrict requestors to pre-Internet technology for submission of their requests.

Unfortunately, it may take the better part of two years for the GRC to adjudicate these cases.  But, while it would have been best for these cases to have been filed two years ago, the second best time for them to be filed is now.

Tuesday, May 15, 2012

Borough seeks up to $339.79 for audio tape of a single meeting

The Borough of Englewood Cliffs (Bergen County) wishes for me to pay up to $339.79 for the audio recording of a December 8, 2010 Borough Council meeting.  The Borough posits that the meeting was recorded on audio tape and that since the Borough now uses CD technology, it needs to use a private vendor, at $135 per hour, to duplicate the 2.5 hour meeting recording.

My OPRA request, the Borough's response and my reply to that response are on-line here.

Wednesday, May 9, 2012

Downe Township agrees to make minutes promptly available

After receiving my notice of an intended lawsuit, the Downe Township (Cumberland County) Committee passed a May 7, 2012 resolution promising to make draft copies of both its public meeting minutes and the nonexempt portions of its nonpublic (closed or executive) meeting minutes publicly available "the sooner to occur of thirty (30) days after a meeting or prior to the next scheduled meeting, whichever occurs first."  My threatened lawsuit, Committee resolution and cover letters are on-line here.

Downe Township is a rural township of about 1,700 inhabitants that borders the Delaware Bay.  Some towns, due to their small size, claim that they don't have the staff or resources to keep their minutes up to date.  The fact that Downe is able to promise to make both its open and closed minutes publicly available prior to the next meeting challenges the "we're too small" excuse.

Tuesday, May 1, 2012

Closed session resolutions in the minutes are different than those passed at the meeting.

I have threatened to sue the Clinton Township (Hunterdon County) Board of Education for violating the Open Public Meetings Act in a way that is new to me--by passing a verbal, closed session motion/resolution during a public meeting that differs substantially from the version of the motion/resolution that is recorded in the meeting's minutes.

By comparing the audio of the Board's meetings with the written minutes, I have found several examples where the Board passed a simple motion, in the nature of "I move that we go into executive session," but then recorded a much more verbose version of the motion in the meeting minutes.  One of the main purposes of N.J.S.A. 10:4-13, which requires that public body pass a resolution in public before going into executive or closed session, is to inform the members of the public in attendance of nature of the matters that the body is going to privately discuss.  For a public body to simply say that it's going into executive session and then include the details of what topics were privately discussed in the meeting's minutes--which won't be publicly available until weeks later--works against that purpose.

To make matters worse, the resolutions that eventually appear in the Clinton Board's public minutes are themselves defective because they give the public no meaningful sense of what topics were privately discussed.  For example, the Board's March 26, 2012 resolution simply states that "matters of personnel and legal rendered confidential" were discussed in closed session. 

My threatened lawsuit is on-line here and a Word 2007 version of it is on-line here.

I have invited the Board to discuss the proposed lawsuit at its May 14, 2012 meeting and have suggested that it could resolve the matter by agreeing to use my "model form" of closed resolution which is on-line here.