Legal Hotline - Open Public Meetings Act
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Because the law is constantly evolving, it is important before relying
upon any opinion on this website that you check with the hotline counsel
to ascertain whether or not there has been any subsequent change or
supplementation to the law since the date of the opinion.
Answers provided by
NJPA's
Legal Counsel.
June
3, 2002
Question:
A local governing body and school board are meeting to work
out a school budget and have closed the meetings under the litigation
exception. Is this correct?
Answer:
No. The litigation exception is designed to permit a public
body to discuss a real threat of litigation (for example to discuss
strategy). Virtually everything a public body does may result in
litigation, to permit the use of some vague threat of future litigation to
close meeting is a misuse of the exception.
May
23, 2001
Question:
When a public body goes into executive session, emptying the meeting room and closing the doors to the room, is the public body obligated to re-open the meeting room and advise the public waiting outside that the public portion of the meeting has resumed?
Answer:
Yes. Every public session must be open to the open and the body cannot avoid the Open Public Meetings Act by failing to notify the public that the session has been re-opened after executive session.
May
22, 2001
Question:
A local Board of Education interviewed candidates to fill a vacancy in public session then went into executive (closed) session to discuss the applicants and returned to public session to vote. Is this procedure correct under the Open Public Meetings Act?
Answer:
Under the
Open Public Meetings Act the Board is directed to go into closed session to discuss personnel matters (matters dealing with a specific person) unless the affected individual requests or consents to a discussion in public. In the circumstances presented, since the candidates were present, the
Board should have asked the candidates if they wanted the discussion to take place in public.
May
14, 2001
Question:
May a school board meet with a consultant to discuss its budget in closed session under the litigation exception to the Open Public Meetings Act?
Answer:
No. The litigation exception is designed to permit a public body to meet to discuss a specific identifiable litigation matter. Almost any action of a public body carries with it the threat of some future litigation. For example any application before a zoning board may result in litigation by an applicant who is denied or by a neighbor who objects to approval. This specter of future litigation does not permit the zoning board to close all applications to the public. To use the litigation exception in such a broad manner would defeat the law.
March 13, 2001
Question:
Two juveniles brought charges against an adult in municipal court. The juveniles' names were listed on the court calendar and they testified in open court. May the newspaper print the names of the juveniles?
Answer:
Yes. A newspaper may print any information it lawfully obtains.
February 5, 2001
Question:
Are telephone records of public officials public records?
Answer:
No. The New Jersey Supreme Court decided in North Jersey Newspapers Company v. Passaic County Board of Chosen Freeholders, 127 NJ 9 (1992), that telephone records are not public records under the Right to Know Law. The Supreme Court also held that under the common law the right to privacy of the constituents who receive calls from their public officials is greater than the public need to know information about the calls made by those officials.
January 11, 2001
Question:
It seems that there was a local meeting among the Republicans of a municipality in the paper's area wherein the Republicans alleged that they discussed the actions of a renegade Republican among them who had voted for a Democrat to an appointed post, contrary to the Republican Party's general wishes. According to the persons at the meeting, the matters discussed were whether or not any action should be taken toward this one Republican member and the effects on the Party organization of any actions contemplated. Apparently, they decided to overlook the vote (for the Democratic appointment).
The question posed to me was whether or not such a meeting would be open to the Open Public Meetings Act.
Answer:
I opined that it was not if the discussions were, in fact, as described by the Republican participants. NJSA 10:4-7 provides that "typical partisan caucus meetings" are not covered by the Open Public Meetings Act.
December 13, 2000
Question:
If a school board gathers at the home of one of its members is that a violation of the Open Public Meetings Act?
Answer:
If the school board members present represented a quorum and they discussed the business of the board, the meeting should have been
advertised and should have been open to the public.
December 8, 2000
Question:
Received a call indicating that a local township council went into executive session simply under the heading of potential litigation, without any more. The asked me if this was appropriate; that she had objected to that at the time of the meeting but no answer was given her.
Answer:
I advised that under the Open Public Meetings Act, NJSA 10:4-12(b)(7), there is a provision for a public agency going into executive session for pending or anticipated litigation. But I also advised that the reason given for going into executive session should read more than potential litigation. There should be some reference to a specific matter so that the public knows that this is just not something pulled out of the air on the theory that anything could be litigated. I gave some cases to that effect:
Accardi v. Mayor & Council of the City of North Wildwood, 145 N.J. Super. 532 (L.1976); Houman v. Mayor & Council of Borough of Pompton Lakes, 155 N.J. Super. 129 (L.1977).
It is suspected by the reporter that the council was going into executive session because the township clerk was suing the township under some OSHA claim and it was this suit or anticipated suit that they were discussing. I advised that she ought to write the township attorney and ask for more specifics, citing the above cases, and, in particular, requesting the status of the matter such as would qualify it as "anticipated litigation."
October 12, 2000
Question:
Must the police release reports of allegations of criminal acts by juveniles?
Answer:
No. Juvenile police records are confidential. At such time the matter goes to court the newspaper may petition the court to permit access to the proceedings.
October 5, 2000
Question:
Once a public body passes a resolution to go into executive session may it discuss matters other than those stated in the resolution?
Answer:
No. The appropriate procedure is to return to open session and pass another resolution to go into executive session to discuss the second matter.
September 25, 2000
Question:
Where is the best place to get information regarding the results of a search according to a court ordered search warrant in a criminal case?
Answer:
This does not come under the auspices of any executive order since local police, not State police -- were involved. The reporter might get some information by an inquiry with the police department that conducted the search. The reporter should inquire as to whether or not an affidavit or report was filed with the court as to the results of the search (much as there has to be a report within a set period of time with respect to what a court ordered wire intercepts). The reporter should also check with the court to see if there were any reports and if they will be available to her. Such reports should and must be available to the public unless there was a court order sealing the report from the public's eyes, in accordance with the Hammoch rule.
August 2, 2000
Question:
May the newspaper print statements contained in a filed complaint?
Answer:
Yes. As long as the statement is attributed to the complaint and is accurate the newspaper will not be held liable in defamation.
July 27, 2000
Question:
A municipality has released minutes of an executive session meeting to an individual who is suing the municipality over alleged violations of the Open Public Meetings Act. The minutes were released with a designation that they were confidential and were accompanied by a request that the suit be withdrawn. Does this release render the executive session minutes public?
Answer:
Probably not. A court would probably construe the release as a confidential offer of settlement and would not order the minutes released.
July 13, 2000
Question:
Does the Right to Know Law require the public agency to answer a request for public records within a specified time frame?
Answer:
The current law does not, although it does state that the records should be "readily available."
Question:
When does a complaint filed to begin litigation become a public record?
Answer:
The moment it is filed with the court a complaint becomes a public record, open to public inspection unless otherwise sealed by the court.
April 11, 2000
Question:
Is it necessary to make available an agenda for a regularly scheduled meeting?
Answer:
It is not so required as long as the meeting was scheduled in the annual notice of meetings. Under the statute no further notice is required of the meeting. If the meeting is a rescheduled or special meeting, then, in that event, an agenda must be made available to the extent that it is known. It was suggested to request copies of an agenda under the common law right to know and if the agendas are required pursuant to Rules of the Council to be prepared in advance of a meeting, then also under the statutory right to know.
March 7, 2000
Question:
What is the common law definition of "public record" and where is it found?
Answer:
The common law definition of "public record" was set forth by the New Jersey Supreme Court in
Nero v. Hyland, 76 N.J. 213 (1978):
"...one required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done, or a written memorial made by a public officer authorized to perform that function, or a writing filed in the public office. The elements essential to constitute a public record are *** that it be a written memorial, that it be made by a public officer, and that the officer be authorized by law to make
it;..."
[Nero, supra, at 222]
March 2,
2000
Question:
The paper asked whether the law required that executive session minutes be recorded.
Answer:
We indicated to the paper that it did not. It merely required reasonably comprehensive minutes. If there were no written minutes and the only memorialization of the executive session was the recording, then one could argue that the recording constituted the minutes.
February 18, 2000
Question:
The local board of education keeps records of all persons who request petitions to collect signatures for upcoming elections. The Board releases filed petitions but will not release the names of all persons who have obtained the blank petitions.
Is this information public, subject to disclosure?
Answer:
Not under the Right to Know Law. The RTK law defines public records as those required by law to be made, maintained, or kept on file. Since the law does not require the Board to obtain the names the information is not a statutory public record. The information may be a common law public record as a written memorial created by a public official. Under the common law the public interest in access must be balanced against the interest in privacy. This may require a court to review the documents and balance the interests.
January 26, 2000
Question:
Received an email from a reporter who made a request of the New Jersey Department of Human Services for specific addresses of all group homes for developmentally disabled and mentally ill people in the paper's area which are run by private agencies and funded by the State. This reporter was advised by the public relations person for the Department that such locations are not public record due to the Fair Housing Act and the Americans With Disabilities Act. However, this reporter only asked for addresses, not names.
Is this answer provided by the Department of Health and Human Services correct under the law?
Answer:
All records which are required by law to be "made, mentioned or kept on file" by any government agency is a public record open to inspection unless a specific law, regulation or executive order of the Governor exempts the record. If a State agency is denying access, it should specifically identify the law, regulation or executive order which exempts the record.
If the records are not public records under the statute, they may be common law public records. If so, then the agency could deny access where the right to privacy outweighs the need to know.
Here, since only the locations are requested and not any information as to specific residents, there does not appear to be any need for privacy.
November 24, 1999
Question:
May a member of a public body participate in a public meeting by telephone conference call?
Answer:
Yes. The definition of "Meeting" in the Sunshine Law "includes any gathering whether corporeal or by means of communication equipment."
N.J.S.A. 10:4-8
November 24, 1999
Question:
A local official was recently investigated by the state. After the investigation was completed the official "retired" in exchange for a pension/severance package. May the local authorities keep the details of the package from public view?
Answer:
No. First, the pension package details are public information under Executive Order 11, signed by Gov. Byrne in 1974. Executive Order 11 states that "the amount and type of pension" is a public. Second, under a New Jersey Supreme Court case, South Jersey Pub. Co., Inc. v. New Jersey Expressway Authority, 124 N.J. 478 (1991), a settlement such as this may not be kept secret once the agreement is finalized. For example once the employee or official accepts the agreement and resigns the position there is no reason to keep the settlement secret and it should be disclosed.
November 8, 1999
Question:
A local governing committee is permitted to go into closed (executive) session to discuss the acquisition of land but may they also keep secret the reason why the municipality wishes to purchase the property?
Answer:
No. There is nothing in the Open Public Meetings Act that would permit the reason for the purchase to be kept secret. In fact the decision to undertake negotiations to acquire the property should have been done in public
October 12, 1999
Question:
Is a public body required to publish or post an agenda in advance of its meeting?
Answer:
No. The law does not require advance notice of the items on the agenda, except in the case of emergency meetings. Notice of an emergency meeting must include the agenda.
October 5, 1999
Question:
Where members of a public body meet with a local official and local business persons to discuss road improvements, must the meeting be open to the public?
Answer:
As long as the meeting is purely advisory then it is exempt from the Open Public Meetings Act. If the meeting required action by a public body then it would have to comply.
September 27, 1999
Question:
May a public body take a vote in an executive session? Is an executive session convened with out a resolution proper?
Answer:
Before a public body can go into executive session (closed session) it must adopt a resolution setting forth the reason for the executive session and the time when it anticipates the minutes of the executive session will be made available. An executive session without a resolution is not in compliance with the Open Public Meetings Act.
Further the public body may not act in the executive session; it may only discuss the issues listed in the resolution closing the meeting to the public.
September 3, 1999
Question:
Are accident reports, prepared by NJ Transit public records?
Answer:
Any accident report required by law to be made, maintained, or kept on file are public records open to public inspection. In addition other accident reports, particularly those regarding public transit, utilities, or a matter of public concern are generally held to be public records under the common law (court made law).
July 13, 1999
Question:
May a municipal governing body go into executive (closed) session to interview a possible replacement for a council member who has resigned?
Answer:
Yes. The courts have construed the personnel exception to the Open Public Meetings Act to permit closed session interviews of potential appointees. The individual to be interviewed has the option to request an open session.
July 13, 1999
Question:
A local school board is meeting to discuss whether to accept a parcel of land from the township. Can the board discuss this matter in closed session under the contract negotiation exception?
Answer:
No. The contract negotiation exception is intended to shield discussion of real negotiations, for example price and terms. When the issue is merely whether or not to accept a piece of land offered by the municipality there is no reason for a closed session.
June 28, 1999
Question:
Is the board of trustees of a regional emergency first aid squad a public body for purposes of the Open Public Meetings Act?
Answer:
The Act defines a public body as: "a commission, authority, board, council, committee or any other group of two or more persons organizedunder the laws of the State, and collectively empowered as a voting body to perform, a public governmental function affecting the rights, duties,obligations, privileges, benefits, or other legal relations of any person,or collectively authorized to spend public funds . . ." Whether a body is a public body would depend upon whether such body is authorized by states law and what the duties of the board are.
June 28, 1999
Question:
Is the board of trustees of a regional emergency first aid squad a public body for purposes of the Open Public Meetings Act?
Answer:
The Act defines a public body as: "a commission, authority, board, council, committee or any other group of two or more persons organizedunder the laws of the State, and collectively empowered as a voting body to perform, a public governmental function affecting the rights, duties,obligations, privileges, benefits, or other legal relations of any person,or collectively authorized to spend public funds . . ." Whether a body is a public body would depend upon whether such body is authorized by states law and what the duties of the board are.
November 19, 1998
Question:
Is a local board which negotiates and settles litigation for a self-insured municipality subject to the Open Public Meeting Act?
Answer:
The Open Public Meetings Act defines a public body as:
a. "Public body" means a commission, authority, board, council, committee or any other group of two or more persons organized under the laws of this State, and collectively empowered as a voting body to perform a public governmental function affecting the rights, duties, obligations, privileges, benefits, or other legal relations of any person, or collectively authorized to spend public funds including the Legislature, but does not mean or include the judicial branch of the government, any grand or petit jury, any parole board or any agency or body acting in a parole capacity, the State Commission of Investigation, the Apportionment Commission established under Article IV, Section III, of the Constitution, or any political party committee organized under Title 19 of the Revised Statutes.
If the board is the body charged with settling litigation and therefore "spending" public monies, it is subject to the OPMA. Of course, many of the meetings of that board may be closed under the exception which permits closure of meetings to discuss pending litigation. The board would, however, be required to keep minutes of its meetings and those minutes must eventually be released to the public. In the case of pending litigation, the minutes are often released after the litigation has been completed either by settlement of, after dismissal, or trial.
November 17, 1998
Question:
May a school board go into closed session to discuss a consultant's report on potential drug testing in the schools (which has been released to the public) under the exceptions of "personnel matters" or "threatened litigation" or because the report is deemed by Board to be controversial?
Answer:
No. The personnel exception is reserved for the discussion of a particular employee or employees. In addition, the effected employees must be given advance notice of the Board's intention to discuss them and they have the right to request the meeting be open to the public. If there is no discussion of individual employees and/or the employees have not been given notice, then the closed session is improper under the personnel exception.
The pending or anticipated litigation exception is to be used only when there is a real threat or after suit has been instituted. Theoretically, every action of the Board could result in a lawsuit and the exception may not be invoked simply because the action could result in a suit sometime down the road.
The fact that the report or a contemplated action may be controversial does not, without more, justify closing the discussion.
School boards often make use of another exception which permits closed session where disclosure of the discussions may result in an unwarranted invasion of privacy. Generally, when school board discussions would necessarily identify particular students the board is permitted to close the meeting to the public. That exception does not seem to be applicable here where the board has released the report to the public.
September 17, 1998
Question:
It seems a township's governing body went into executive session with simply a resolution defining or describing the subject as a matter "of anticipated litigation." The question asked is whether or not that is a sufficient description or specification to enable the governmental body to, in fact, go into executive session, in accordance with the Open Public Meetings Act.
Answer:
The answer is no. The specific statute wording (NJSA 10:4-13) provides as follows: "No public body shall exclude the public from any meeting to discuss any matter described in Section 10:4-12(b) until the public body shall first adopt a resolution, at a meeting to which the public shall be admitted: (a) stating the general nature of the subject to be discussed; and..." There has been published case law covering this issue, the most recent being that of the
Council of New Jersey State College Locals v. Trenton State College Board of Trustees, 284 N.J. Super. 108 (Law, 1995). The facts of that case were that the college board of trustees were going into executive session to discuss eliminating some percs of some of the vice-presidents of the college, in return for which consideration was to be paid to such vice-presidents. In describing the reason for going into executive session, the board's resolution simply stated as follows: "To consider personnel matters, labor relations, any pending litigation, and any other matters specifically exempted by the Open Public Meetings Act."
The trial judge held that that language, simply parroting the general exemption classifications in the statute, was amorphous and vague and not specific enough to give the public an idea of the general subject to be discussed. The court noted that it is a difficult job, sometimes, to frame the resolution so that the public has the most information it can have as to the nature of the executive session discussion without endangering the interests of privacy as called for by the statute and case law. Obviously, the governmental body doesn't want to get so specific in their description of
"anticipated litigation" that it encourages the litigation.
On the other hand, the public has a right to have some idea of the nature of the discussion in executive session -- e.g., "anticipated litigation involving real property matters," or "anticipated litigation regarding personnel matters," etc. Too, court decisions as to the adequacy of a description of "anticipated litigation" in a resolution to go into executive session will be fact-sensitive. However, a repeating of the statutory description of exemptions from open public meeting discussions by itself would not meet the notice requirements of the Act.
P.S. Spoke to the reporter again today, September 17, and advised him of our opinion. He noted that the governing body of this township gave further particulars of the matter which was discussed in executive session as anticipated litigation such as to properly identify the issues discussed (at the prior executive session). Thus, it appears clear that the deficiency in this case has been rectified. See
Council of New Jersey State College Locals v. Trenton State College Board of Trustees, supra, at 115-116. See, too, NJSA 10:4-15.
September 3,
1998
Question:
May a municipality bar the public from listening to a tape recording of an open public meeting?
Answer:
There would not be any reason under the law to bar the public from reviewing a tape of an open meeting. If any member of the public had attended the meeting they could have seen or heard for themselves what took place. There has been a decision of the New Jersey Supreme Court which found that a tape recording of a closed or executive session could be withheld from the public if the court found that it contained confidential information.
Atlantic City Convention Center v. South Jersey Pub. Co., Inc., 135 N.J. 53 (1994). This decision would not be applicable to an open session.
September 2, 1998
Question:
Is a consultant's report prepared at the request of a municipal body a public record under the Right to Know Law?
Answer:
Not in all cases. Where a report is not required by law but was prepared to assist the body, it is not a public record. The Right to Know Law defines public records as those "required by law to be made, maintained, or kept on file" so only those reports required by law are open to public inspection. If the report was not required to be made but is later filed in court, or filed with the State, it may become a public record. The information as to the cost for the report and who prepared it is generally public information.
July 24, 1998
Question:
May a public body bar a reporter from audio taping an open meeting?
Answer:
The Open Public Meeting Act does not address the issue of tape recording, either audio or video. The Court has, however, determined that recording is permissible so long as it does not disrupt the meeting.
In Maurice River Board of Education v. Maurice River Teachers Association, 193 N.J. Super. 488 (App. Div. 1984), the teachers Association sought to video tape the Board of Education meetings; the Board sought to ban such taping. The court declared that although no provision permitting videotaping is specifically found in any statute, neither is there any prohibition on taping. The court held that the public body could place reasonable restrictions on the videotaping so as not to interfere with the proceedings and could, of course, exclude coverage of any part of a meeting not open to the public, but could not issue a blanket prohibition on the taping.
July 7, 1998
Question:
If a quorum of the municipal governing body is having dinner together, is that a public meeting subject to the Open Public Meetings Act?
Answer:
The Open Public Meeting Act defines a "meeting" as: "Meeting" means and includes any gathering whether corporeal or by means of communication equipment, which is attended by, or open to, all of the members of a public body, held with the intent, on the part of the members of the body present, to discuss or act as a unit upon the specific public business of that body.
"Meeting" does not mean or include any such gathering (1) attended by less than an effective majority of the members of a public body, or (2) attended by or open to all the members of three or more similar public bodies at a convention or similar gathering. "Public business" is defined as: "Public business" means and includes all matters which relate in any way, directly or indirectly, to the performance of the public body's functions or the conduct of its business.
The Hotline is operated by
NJPA's
General Counsel, Tom Cafferty of Gibbons P.C.
Cafferty has served in this capacity for more than 30 years and has
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