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NJLM's Legislative Blog

Nov 06

OPRA/OPMA Legislation: Adequate Notice, Agenda Items and Meeting Requirements

Posted on November 6, 2019 at 4:06 PM by Legislative Staff

This post is the fourth in a series of blog posts to detail the amendments proposed in S-106, which amends the Open Public Meetings Act (OPMA) and S-107, which amends the Open Public Records Act (OPRA).  This blog post primarily focuses on the proposed amendments in OPMA.

Current law:

In passing the Open Public Meetings Act law the State Legislature declared it public policy of this State to “ensure the right of its citizens to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed or acted upon in any way except only in those circumstances where otherwise the public interest would be clearly endangered, or the personal privacy or guaranteed rights of individuals would be clearly in danger of unwarranted invasion.” (N.J.S.A. 10:4-7)

The law requires that public bodies provide public notice of their meetings.  The annual notice must be provided within 7 days following the annual or reorganization meeting but no later than January 10. The annual notice must include the schedule of the regular meetings for the year, the time and date of each meeting. (N.J.S.A. 10:4-18). For special or reschedule meetings, the public body must provide at least 48 hours written notice of their meetings, giving the date, time, and location and to the extent known the agenda of the meeting. The notice must accurately state whether formal action may or may not be taken. The notice must be prominently posted in at least one public place mailed, telephoned, or hand-delivers to at least two newspapers, one of which is the official newspaper.  (N.J.S.A. 10:4-8)

The law permits public bodies to provide electronic notices of any meeting on their website. (N.J.S.A. 10:4-9.1)

The law also permits any person to request that the public body mail copies of any regular meeting schedule or revised notices upon prepayment of a reasonable sum to cover the costs of providing such notice. All requests for notices made expire at midnight on December 31 of each year but are subject to renewal upon a new request to the public body. (N.J.S.A. 10:4-19)

The law does permit a meeting to be held without adequate notice upon an affirmative vote of ¾ of the members present in very limited circumstances. The meeting is required to deal with matters of such urgency and importance that a delay for the purpose of public notice would likely result in substantial harm to the public interest, and the meeting is limited to discussion of and acting upon such matters. Notices of such meetings must be provided as soon as possible by posting a written notice in a public place and by notifying the two newspapers that receive public notices.  The notice must state, either: (a) the public body could not reasonably have foreseen the need for such meeting at a time when adequate notice could have been provided; or (b) although the public body could reasonably have foreseen the need for such meeting at a time when adequate notice could have been provided, it nevertheless failed to do so.  (N.J.S.A. 10:4-9)

Proposed legislation:

Section 2 of S-106:

  • Adds and defines the term “agenda” to mean “the list of all items of business to be discussed or voted on at a public meeting.”

  • Requires for the purpose of providing adequate notice that the agenda “include each individual item to be discussed or acted upon and a brief description thereof, and shall identify the names of the parties to ensure approximate dollar amounts of any contracts, including employment contracts and collective bargaining agreements, for which agreements the agenda shall list the number, but not the names, of employees covered thereby, to be discussed or acted upon.”

  • Prohibits a public body from acting upon a matter that is not listed on the agenda, however, an item may be added to the agenda by an affirmative vote of a majority of the governing body members present when necessary to “deal with a matter of such urgency and importance that a delay for the purpose of providing adequate notice would be likely to result in substantial harm to the public interest.”

  • If an item is added to the agenda after the fact the minutes must “contain a statement that explains the reason for adding that item to the agenda, why the item did not appear on the agenda for that meeting, and why delaying consideration of the item would be likely to result in substantial harm to the public interest, except that the State Legislature may add an item to its agenda at any time.”

  • If an agenda includes a reference to an attachment, appendix, or other document that is a government record, then the agenda must include a statement that the reference item “shall be available for public inspection, copying, or the purchase of copies.” If a public member requests the referenced item at least 24 hours prior to the meeting, the records custodian must send an electronic copy of the referenced item. If a public member requests the referenced item within 24 hours prior to the meeting, the referenced item must be made available to the public member at the public meeting.
  • Removes the language “to the extent known” under the definition of adequate notice. In other words, when providing notice for a meeting, including regular and special meetings, no longer can you list the items known at the time. If the item is not included in the notice, the governing body cannot take action unless they take a vote to add the item to the agenda.

  • Requires that adequate notice of a meeting be prominently posted on the public body’s internet site, if they have an internet site, in addition to the posting in a public place.

  • Updates the method of delivery to the official newspapers by removing telegrammed and adding faxed or mailed electronically.

  • Requires notices to include an estimated starting time, “as nearly so can be established” for the beginning portion of any meeting from which the public is not excluded.

Section 3 of S-106:

  • Prohibits subcommittees which the public body has determined to have open meetings from holding a meeting unless adequate notice has been provided to the public.

  • Requires notices of emergency meetings to be posted on the public body’s website and updates the manner to provide the notice to the newspapers.

  • Removes the provision that allows an emergency notice when the “the public body could reasonably have foreseen the need for such meeting at a time when adequate notice could have been provided, it nevertheless failed to do so.”

Section 4 of S-106:

  • Requires that a public body provide electronic notice of any meetings of the public body on their website.

  • Defines electronic notice as “advance notice available to the public via electronic transmission of at least 48 hours, giving the time, date, location and the agenda of any regular, special or rescheduled meeting, which notices shall accurately state whether formal action may or may not be taken at such meeting.”

Section 5 of S-106:

  • Requires all public bodies, except the State Legislature, to set aside a portion of every meeting for public comment with such comments being limited to the items on the agenda and any governmental issue that the member of the public feels may be of concern to and within the authority of that public body.

  • Requires all public bodies, except the State Legislature, to permit all proceedings of any public meeting to be recorded, photographed, audiotaped, videotaped, broadcast or recorded for broadcast by any member of the public or news organization, subject to only such reasonable rules as the public body may adopt prior to the meeting to minimize undue disruptions of its meetings.

  • Requires public bodies to prepare a written policy that is intended to maximize public participation, and that addresses the amount of time it will devote to receiving public comments at meetings. This written policy must be included on each meeting agenda, on the public body’s website, and posted in a public place. The Division of Local Government Services is required to prepare guidelines creating minimum standards ensuring public participation for public bodies.

  • Provides a limited exception for matters before the planning board and board of adjustment to requiring that the above provisions be complied with to the “maximum extent possible and practicable; however, the provisions of the Municipal Land Use Law” regarding the receipt of public comments shall be followed.

Section 12 of S-106:

  • Permits any person to request that the public body mail or email at their option notice of agendas of all meetings. If a person requests the notices to be emailed, then no payment can be required.

Section 13 of S-106:

  • Requires the Secretary of State to create and maintain a website for the posting of information for state agencies, including meeting notices and agendas for State agencies’ public hearings and meetings.

Section 16 of S-106:

  • Requires every public body, except the State Legislature, that maintains a website to post the public body’s annual meeting schedule and its agenda of those meetings, including revisions; notice of emergency meetings; minutes of each meeting, including a statement that the closed session minutes will be available upon request once they have been deemed a government record; resolutions and ordinances, if they are not in the minutes; and closed session resolutions.  If a public body does not have a website, then the information is forwarded to the Secretary of State for posting on the website created under Section 13 of S-106.

  • Requires minutes, including closed session minutes, once they are a government record, resolutions, and ordinances remain on the public website for at least five years from the date of posting.

  • Requires all information posted on the website under this amendment must remain posted for a period of time determined by the State Records Committee.

  • Requires that a public body provide any requestor with free paper copies of any information that is required to be posted on the website but is not so posted.

Section 17 of S-106:

  • Requires that when a public body provides information on its website, it must make “reasonable efforts” to make the existence and location of its site or pages known to the public within their jurisdiction.  As such, at a minimum this information must be included in public notices, agendas, and minutes, as well as by announcing at a public meeting.

Although the League of Municipalities is a strong proponent of openness and transparency in government, we must continue to oppose both S-106 and S-107 as neither bill addresses the expenses municipalities currently incur and will incur under the new provisions.  Currently complying with the Open Public Records Act (OPRA), municipalities hire additional staff, incur increasing legal expenses to ensure compliance, and expend funds defending litigation based on existing Government Record Council (GRC) and conflicting case law. In addition, some of the new provisions, especially under the Open Public Meetings Act (OPMA), will establish bureaucratic processes for public meetings without consideration for operations or meeting the needs of our residents.

We also ask that you consider passing a resolution calling for a study commission, based on a League Conference resolution from last year, instead of this legislation.



Contact: 
Lori Buckelew, Senior Legislative Analyst, lbuckelew@njlm.org, 609-695-3481 x112.

Tag(s): OPRA, OPMA

Oct 30

OPRA/OPMA Legislation: Prevailing Attorney Fees

Posted on October 30, 2019 at 10:57 AM by Michael Cerra


This post is the third in a series of blog posts to detail the amendments proposed in S-106, which amends the Open Public Meetings Act (OPMA) and S-107, which amends the Open Public Records Act (OPRA). 

Current law:

The OPMA, specifically N.J.S.A. 10:4-15, currently allows an individual to institute a proceeding in lieu of prerogative writ in the Superior Court to challenge any action taken by a public body on the grounds that the action was taken at a meeting that failed to meet OPMA requirements.  The OPMA also allows for any person to apply to the Superior Court for injunctive orders and other remedies to ensure compliance with provisions of the Act. While the OPMA provides these mechanisms for relief it does not currently provide for prevailing attorney fees.

OPRA, specifically N.J.S.A. 47:1A-6, currently allows individuals denied access to a government record, at their discretion, the option to institute a proceeding to challenge the record custodian’s decision by filing action in Superior Court or file a complaint with the Government Records Council. The public agency has the burden of proving that the denial of access is authorized by law. A requestor who prevails in any proceeding shall be entitled to a reasonable attorney’s fee.

 

Proposed legislation:

Section 8 and 9 of S-106 amends the OPMA, to provide that “any party, other than a public body” (emphasis added) that prevails in instituting a proceeding in lieu of prerogative writ in the Superior Court, and/or any party that prevails before the Superior Court for injunctive orders or other remedies, “shall be” (emphasis added) awarded “the amount of reasonable attorney’s fees” that shall bepaid by the public body”  (emphasis added.)

 

This new provision will be in addition to the court declaring such action void or any other relief the court may impose.  

 

Please note that this section also amends the time frame to bring such a claim from 45 days after the action to 45 calendar days after the minutes of the meeting have been approved and posted on the public body’s website. 

 

S-107 section 6 amends OPRA, specifically N.J.S.A. 47:1A-6, to continue the mandatory prevailing attorney fees for requestors but adds a very narrow exception to prevailing fees when records required by law to be made, maintained or kept on file do not exist at the time of the request.  
 

This exception only applies if both:

the failure to make, maintain, or keep the record is due to mere negligence or no fault on the part of the public agency; and

 

the requestor was informed in a written statement signed and dated by the records custodian indicating that the record does not exist or no longer exists, the specific efforts taken to obtain the record and why the record could not be produced


 

S-107 section 6 amends OPRA, specifically N.J.S.A. 47:1A-6, to include language that under appropriate circumstances, the rules of the court, and N.J.S.A. 2A:15-59.1 shall apply for frivolous causes of action.

 

We would note the following:

N.J.S.A. 2A:15-59.1 allows either a plaintiff or defendant who prevails in a civil action to be awarded all reasonable litigation cost and reasonable attorney fees if the judge finds at any time during the proceeding or upon judgment that a compliant, counterclaim, cross-claim or defense of the non-prevailing person was frivolous. In order to be a frivolous claim the judge must find on the basis of the pleadings, discovery or evidence presented that either (1) it was bad faith, solely for the purpose of harassment, delay or malicious injury; or (2) the non-prevailing party knew or should have known that the claim was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law. If seeking an award under frivolous case an application must be made to the court supported with a detailed affidavit.

We note the following concerns:

  • Expanding mandatory prevailing attorney fees for violations of OPMA will lead to a greater cottage industry that evolved from prevailing attorney fees in OPRA.
  • Courts and the Government Records Council need the flexibility to award reasonable attorney fees based on the given circumstances of a particular case, not a statutory mandate. 
  • Continuing mandatory prevailing attorney fees in OPRA and expanding them in OPMA will increase local government costs, which are ultimately borne by property taxpayers.

Although the League of Municipalities is a strong proponent of openness and transparency in government, we must continue to oppose both S-106 and S-107 as neither bill addresses the expenses municipalities currently incur and will incur under the new provisions.  Currently complying with the Open Public Records Act (OPRA), municipalities hire additional staff, incur increasing legal expenses to ensure compliance, and expend funds defending litigation based on existing Government Record Council (GRC) and conflicting case law. While well-meaning, OPRA has become fraught with abuse causing municipalities to expend limited administrative and financial resources at the expense and detriment of their taxpayers.    In addition, some of the new provisions, especially under the Open Public Meetings Act (OPMA), will establish bureaucratic processes for public meetings without consideration for operations or meeting the needs of our residents.

We also ask that you consider passing a resolution calling for a study commission, based on a League Conference resolution from last year, instead of this legislation.   


Contact: Lori Buckelew, Senior Legislative Analyst, lbuckelew@njlm.org, 609-695-3481 x112.

Tag(s): OPRA, OPMA

Oct 25

OPRA/OPMA Proposed Legislation: Expanding Definitions of Government Records

Posted on October 25, 2019 at 10:58 AM by Legislative Staff

This post is the second in a series of blog posts to detail the amendments proposed in S-106, which amends the Open Public Meetings Act, and S-107, which amends the Open Public Records Act. 

Proposed legislation:

S-107 section 3 amends the definition of “government record” or “record” to include the following records:

  • Electronic (this merely codifies current interpretation of records),
  • Video recordings,
  • audio recordings,
  • any record “required by law to be made, maintained or kept on file,”
  • any record that has been received by any public employee or public agency in the course of official business
  • allowances sold at auction pursuant to the Regional Greenhouse Gas Initiative (N.J.S.A. 26:2C-45 et seq.) or any similar greenhouse gas initiative, which will not be considered a trade secret, including:
    • the auction clearing price for each allowance;
    • the identity of the winning bidder; and
    • quantity of allowances obtained by each bidder,
  • records containing the names of reviewers of grants, donations, gifts or applications made to a public agency,
  • names of reviewers of charter school applications, which the names cannot be redacted, and
  • EZ pass, or substantially similar, records for vehicles owned by the public entities, other than law enforcement usage.

We would note the following:

  • Section 6 of S-107 provides that prevailing attorney fees are not awarded for records required by law to be made, maintained or kept on file and do not exist at the time of the request if both:
    • The failure to make, maintain, or keep the record is due to mere negligence or no fault on the part of the public agency, and
    • The requester was informed in a written statement by the records custodian that the record does not exist or no longer exists, the specific efforts taken to obtain the record, and why the record could not be produced.
    • S-107 section 9 provides that no public official, officer, employee or custodian will be subject to a civil penalty for any unavailable record that is required by law to be made, maintained, or kept on file unless the availability of the record is a result of the knowing and willful actions or gross negligence of the person
    • In addition, section 9 also defines “grossly negligent” as “engaging in conduct involving a gross deviation from the acceptable standards of conduct from the duties and responsibilities imposed by this act that a reasonable person would have observed in the actor’s situation.”
    • Government Records Council Decision, 2005-49 (Pusterhofer v. NJ DOE), a benchmark decision, found that the custodian was not in violation of OPRA as “the Custodian has certified that the requested record does not exist. Therefore, the requested record cannot be released, and there was no unlawful denial of access.”  

We note the following concerns:

  • While not subject to a fine, a municipal clerk would violate OPRA for not providing a record that was required to made (old budget, minutes) but which cannot be located in the archives.
  • This definition of expansion goes against the entire intent of OPRA. OPRA was signed into law to provide access to records in the possession of the government, not to provide access to records that do not exist.

The League of Municipalities is a strong proponent of openness and transparency in government; however, we must continue to oppose both S-106 and S-107 as neither addresses the considerable expenses municipalities currently incur and will incur under the new provisions.  Currently complying with the Open Public Records Act (OPRA), municipalities have hired additional staff, continue to incur increasing legal expenses to ensure compliance, and expend funds defending litigation based on existing Government Record Council (GRC) and conflicting case law.  In addition, some of the new provisions fail to take into consideration the impact on municipal operations or the privacy rights of our residents.

Contact: Lori Buckelew, Senior Legislative Analyst, lbuckelew@njlm.org, 609-695-3481 x112.


Tag(s): OPRA, OPMA