Sunday, March 12, 2017

Prosecutor: Library Board meeting violated the Meetings Act

In a March 6, 2017 letter, the Union County Prosecutor's Office told the Berkeley Heights (Union County) Library Board of Trustees that it violated the Open Public Meetings Act (OPMA) by discussing contract negotiations during a nonpublic (i.e closed or executive) session with the other party to the contract in attendance.

N.J.S.A. 10:4-12(b)(7) expressly permits contract negotiations to be discussed outside of public view to prevent the other party to the contract from learning the public body's strategy.  But, when the other party participates in the discussion, tthe only ones being kept in the dark are members of the public--the precise group the OPMA intends to keep informed.

The letter, authored by Acting Assistant Prosecutor Shawn P. Barnes, cites the unpublished Appellate Division opinion in Maureen Nevin, et al v. Asbury Park City Council and said that the case was "applicable and controlling in this case."  Nevin sits on the New Jersey Foundation for Open Government's (NJFOG) Board of Directors as the representative of the New Jersey Chapter of the Society of Professional Journalists.

Friday, March 10, 2017

Bergen judge rebuffs Teaneck's bid to bar "abusive and excessive" OPRA requests.

In his March 9, 2017 opinion, Bergen County Superior Court Judge Robert P. Contillo rejected Teaneck Township's attempt to bar future Open Public Records Act (OPRA) requests from a man who made 380 requests in a two-month period.  The judge also denied Teaneck's bid to require the man to pay "extraordinary handling fees" and to relieve it from processing those requests.

According to the opinion, Elie C. Jones filed "an avalanche" of OPRA requests soon after the Township rejected a $10,000 settlement demand Jones had made to resolve his lawsuit against a Teaneck law enforcement officer.  Judge Contillo noted that under the circumstances, "it is easy to under the Township's frustration."  Still, he found that "OPRA requests--even those designed and timed to bludgeon a municipality into a financial settlement--cause no immediate or irreparable harm."  A showing of such harm is required before an injunction can be issued.

The judge noted that Teaneck is "not powerless" and that OPRA provides remedies for public entities facing an enormous number of requests.  One remedy contained in N.J.S.A. 47:1A-5(g) permits the Township to deny requests that "substantially disrupt agency operations" if the requestor refuses the Township's attempts to reach a solution that would accommodate both it and the requestor.  For example, the Township could have requested that Jones prioritize his requests and assess a special service charge for the extraordinary amount of time it would take to fulfill them. Since the lawsuit was filed, Jones had abandoned 290 of his 380 requests, which Judge Contillo found undermined the Township's argument for an injunction.

Judge Contillo also denied the Township's request that the court "assess a special handling fee" because "it is not for the court to assess the fee."  Rather, OPRA requires the Township to assess the fee leaving the requestor with the option to pay the fee, challenge it in court or abandon the request.

The court also wrote that if Township officials felt that Jones' conduct constituted harassment, they could proceed against him under both the civil and criminal code. 

Jones was represented in the matter by Walter M. Luers of Clinton.