It is not enough to release an agenda prior to a public meeting. In order to comply with the Open Public Meetings Act (OPMA), the documents must be meaningful, according to a recent decision by a New Jersey Superior Court judge.
In Opderbeck v. Midland Park Board of Education, Bergen County Superior Court Assignment Judge Peter E. Doyne ruled that the board’s bare-bones agenda didn’t cut it because it failed to include the attachments necessary for the public to understand the agenda.
The Facts of the Case
The dispute arose when Seton Hall University Law School professor David Opderbeck and his wife had difficulty obtaining attachments to a meeting agenda posted online by the Midland Park Board of Education (MPBOE). They were told that they could only seek access to the documents after the meeting by submitting a request under New Jersey’s Open Public Records Act (OPRA).
After asking for additional clarification, counsel for MPBOE sent Opderbeck an email explaining OPMA only requires written notice of the “time, date, location, and to the extent known, the agenda of any meeting to be published forty-eight (48) hours in advance.” The attorney further cited to a formal advisory opinion by the New Jersey Attorney General to support his proposition that supplementary materials given to Board members to inform their decision-making need not be included in the agenda.
Thereafter, Opderbeck requested the Board change its policy by including attachments and appendices with the agendas. While the board agreed to consider policy changes, it ultimately concluded that providing the attachments, which were already in electronic form, would “overload” the public with information and copying costs. Opderbeck subsequently filed a verified complaint alleging violations of OPMA, the New Jersey common law right to access public records, and the New Jersey Civil Rights Act.
The Court’s Decision
In a case of first impression, Judge Doyne held that failing to provide attachments runs contrary to the spirit of OPMA and OPRA. He further agreed with the plaintiff that an Attorney General Opinion does not create binding precedent.
“The failure of the MPBOE to provide attachments and supplemental documents renders the agendas virtually meaningless. Once the defendant posts the agenda, it is the Board’s responsibility to ensure it is meaningful. The defendant cannot provide adequate notice without including the attachments to the agenda. The attachments in this case are not simply supplemental; they are an integral element necessary to understand the agenda,” he explained.
Finally, the judge highlighted that the Board will not be required to produce all attachments to the agenda. “If the Board has a good faith belief certain attachments or documents are privileged or exempt pursuant to OPRA, OPMA, or the common law right of access, they do not need to be provided and the plaintiff or any other party may then submit the appropriate OPRA request. But the attachments and supplementary documents which are not privileged or exempt must be produced electronically with the agendas pursuant to OPMA,” the opinion states.
While Judge Doyne’s decision is not binding on other courts and an appeal may be forthcoming, municipal agencies and boards are encouraged to discuss their current policies regarding agenda attachments with experienced counsel.
For more information about this legislation or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.