Corporations Created to Manage NJ Business Improvement Districts Covered Under OPRA

The Appellate Division recently provided further guidance regarding when quasi-public agencies are subject to the New Jersey Open Public Records Act (OPRA). In Kennedy v. Montclair Center Corporation Business Improvement District, the court held that the corporation responsible for managing Montclair’s business improvement district is subject to OPRA.

The Facts of the Case

In 1984, the New Jersey Legislature enacted The Pedestrian Mall and District Improvement Act, N.J.S.A. 40:56-65 to -89, which authorizes municipalities to create special improvement districts and management corporations to administer those districts. Once a municipal government designates a geographic area as special improvement district, it can collect special assessments from businesses in that area to enhance the district in ways such as cleaning, beautification, and attracting new businesses.

Corporations Created to Manage NJ Business Improvement Districts Covered Under OPRAPlaintiff Scott Kennedy, who owns a printing business in the central businessdistrict of Montclair, was one of the people who filed a certificate of incorporation for MCC and served on its board of directors for several years. In December 2012, Kennedy sent an e-mail to the executive director of MCC making a formal OPRA request for copies of MCC’s telephone bills for the year. The executive director responded that MCC is not subject to OPRA, and that Kennedy could inspect the telephone records in person at MCC’s office.

After several emails were exchanged back and forth, MCC offered to give Kennedy copies of the records at a cost of twenty cents per page. However, he maintained that he would not pay more than the five cents per page mandated under OPRA. Kennedy ultimately filed suit, alleging that MCC failed to comply with OPRA in that it had no OPRA record custodian, had no OPRA request form as required by N.J.S.A. 47:1A-5(f), and charged excessive copying costs, in violation of N.J.S.A. 47:1A-5(b).

Seeking to resolve the dispute. MCC offered to provide the copies at the lower cost. However, Kennedy refused, demanding that MCC acknowledge that OPRA applied and pay his expenses and attorney’s fees for the litigation.

The Court’s Decision

In light of the broad definition of “public agency” in the statute, and the underlying policy in favor of the public’s right of access to government records, the Appellate Division concluded that MCC is a public agency subject to OPRA.

“The municipal government is deeply involved in the creation, structure, and functioning of MCC. Allowing access in accordance with OPRA to the records of MCC could ‘shed light on the operation of government,’” the panel explained.

In reaching its decision, the appeals court highlighted that MCC was created and its existence continued by municipal ordinances, and not by private individuals. It further noted that MCC is funded by special assessments imposed by the municipal government on property owners in the central business district. Also, the enabling ordinance establishes means by which the Township Council retains control over how MCC manages the business district and authorized the Township Council to terminate it at any time.

For more information about this case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group

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