Tag Archives: OPMA

New Jersey Legislature Permits Electronic Public Meetings During COVID-19 Emergency

Update: Governor Murphy signed this bill into law on March 20, 2020. Many public agencies are already conducting electronic meetings.

The New Jersey Legislature is currently considering numerous bills in response to the current COVID-19 pandemic. One bill is A3850, which passed in the Assembly on March 16, 2020, and will likely also pass in the Senate very soon. A3850 amends a public body’s obligations under the Open Public Meetings Act (OPMA) during a state of emergency. Because this is Sunshine Week and transparency is very important during a crisis, we decided to devote a blog to this pending bill.

Public Bodies May Conduct Electronic Meetings

The amended law would provide that during a state of emergency, public health emergency, or state of local disaster emergency, a public body may perform any of the following by “means of communication or other electronic equipment:”

  1.            conduct a meeting and public business at that meeting,
  2.            cause a meeting to be open to the public,
  3.            vote, or
  4.            receive public comment.

Conducting any of those activities electronically during a statement of emergency will not be considered a violation of OPMA.

The bill does not provide a definition for “means of communication or other electronic equipment.”  Most public agencies will likely utilize video conferencing programs that permit the public to view a public meeting and participate in the public comment section in real time during the meeting. Those agencies will likely also accept public comments by email or phone for those who do not have such technology.

Public Bodies May Give Electronic Notice of Meetings

The bill also allows for electronic notice of public meetings at least 48 hours in advance of a meeting, giving the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting. The notice must also accurately state whether any formal action may or may not be taken at such a meeting. Importantly, to the extent practicable, a public body providing only electronic notice of a meeting pursuant to the new law shall limit public business discussed or effectuated at the meeting to matters necessary for the continuing operation of government and which relate to the applicable emergency declaration.

We will provide an update when this bill is signed into law.

 

To contact us about this blog post or discuss an OPRA denial, email cgriffin@pashmanstein.com or visit the “contact us” tab above.

Government Records Council in Violation of OPMA?

We have blogged before about a public agency’s requirement under the Open Public Meetings Act (OPMA) to make its meeting minutes “promptly” available to the public.  Our courts have held that minutes must be made available within two weeks after a public meeting or, at a minimum, at least 48-hours prior to the next meeting.  Those who regularly file requests for meeting minutes, however, are well aware that overwhelmingly public agencies fail to meet this timeline.  Indeed, many, if not most, public agencies are months behind on releasing minutes to the public.

One such agency is the Government Records Council (GRC).  The GRC was created by the Legislature to assist in the administration of the Open Public Records Act (OPRA).  The GRC offers advice to records custodians and requestors, mediates and adjudicates denial of access complaints, and provides training on OPRA to custodians and the public.  You would think, then, that they would be a stellar example to other agencies on how to comply with New Jersey’s transparency laws.  Think again.

Our client, Harry Scheeler, just filed this complaint with the Mercer County Prosecutor’s Office asking the prosecutor to investigate and find the GRC in violation of OPMA.  Mr. Scheeler demonstrates how the GRC is often nearly 6 months behind in making their minutes available to the public.  Their frequent excuse is that they are unable to have a quorum at their meetings to formally approve the minutes and thus the minutes are “drafts” that are exempt under OPRA.  Case law, however, is clearly that “promptly available” means just that and being months behind on approving minutes is unacceptable.

If the GRC is having trouble forming a quorum to hold its meetings (which also causes significant delay in the adjudication of OPRA complaints), perhaps the Governor should remove the members for “good cause.”  These absent members are clearly causing the GRC to fall short of its statutory obligations under OPMA.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

Can I Request Closed Session Meeting Minutes?

Pursuant to the Open Public Meetings Act (OPMA), meeting minutes must be “promptly available” to the public.  Our courts have held that “promptly available” means within two weeks after the public body’s last meeting or at least 48 hours prior to the next meeting. At any point after that, you are free to submit an OPRA request for the minutes and access must be granted within seven (7) business days.  But what about closed/executive session minutes?

OPMA allows a public body to meet in closed session to shield certain information from the public. Among other things, these matters include: (1) matter rendered confidential by other laws; (2) matters which would constitute an invasion of individual privacy; (3) proposed terms of a collective bargaining agreement; (4) litigation-related subjects; and (5) certain employment matters. N.J.S.A. 10:4-12.  The public body must keep minutes for these closed sessions. While it may redact the minutes when responding to your OPRA request, it must state the specific basis for each redaction within the minutes.  It is not enough that it issues a blanket claim of assertion for all redactions.  Finally, once the need to keep certain information ceases (such as once the litigation ends), then the public entity is to release the minutes in full, unredacted form.

For more information about this blog post, please contact cgriffin@pashmanstein.com.