New Jersey - Local Open Government Blog

New Jersey League of Municipalities a Public Agency Subject to Open Public Records Act

Steve DiJulio — Thu, 25 Aug 2011 13:19:18 -0800

The New Jersey League of Municipalities (League) is a non-profit, unincorporated association representing over 500 of New Jersey’s municipalities. The League was authorized by the New Jersey Legislature in 1915. One of its functions is serving as a lobbying organization for the state’s municipalities. Its employees are eligible for membership in the New Jersey Public Employee’s Retirement System.

In response to a request for records, the League claimed that it was not a public agency subject to the New Jersey Open Public Records Act (OPRA). The trial court and Court of Appeals agreed with the League. On August 23, 2011, the New Jersey Supreme Court unanimously reversed the lower courts and found that the League was a public agency. Fair Share Housing Center, Inc. v. New Jersey State League of Municipalities, No. 066228. The court distinguished the term “public body” under that state’s Open Public Meetings Act (OPMA), from the term “public agency,” which it found far more encompassing under the OPRA. In contrast to Washington State court decisions, the fact that the New Jersey League was found not to engage in “governmental functions” was not relevant to the inquiry. See the discussion of West v. Washington State Association of Counties (2011) and Telford v. Thurston County Board of Commissioners (1999) in the posting of June 2, 2011: “Washington Association of County Officials Subject to Open Public Meetings Act.” One of the factors considered by Washington courts in determining whether an entity is an “agency” or the “functional equivalent” of an agency and subject to the Washington Public Disclosure Laws is whether the entity performs a governmental function.

Rutgers University Board Must Hold Executive Sessions Only After Open Session

Steve DiJulio — Mon, 28 Feb 2011 14:17:16 -0800

Rutgers is the State University of New Jersey and subject to that state’s Open Public Meetings Act (OPMA). A recent decision of the intermediate appellate court of New Jersey found that Rutgers had violated the New Jersey OPMA in the course of various executive session proceedings.

Like many public bodies subject to an OPMA, the Rutgers Board of Governors would conduct executive sessions at various times, including shortly after the commencement of a meeting. Applying the unique provisions of the New Jersey OPMA, the court concluded that the

“variable time for the resumption of the open session, in combination with the brief 5-minute open session at the beginning of the meeting, creates such uncertainty about when the public session will actually resume as to impermissibility erode the reliability of the times specified in the public notices of the Board’s meeting.”

As a result, the court ordered that the Rutgers Board of Governors must complete its open session before commencing any closed session. This rule is not likely to apply in Washington where the Washington State OPMA specifically requires that before entering an executive session, the agency must identify the period of time for the executive session. RCW 42.30.110 (2). This is to provide the public with knowledge of when the public will regain access to the public portion of the agency’s meeting. Accordingly, the public will know what time the public session is to resume, and any public session that began before that announced time would be in violation of Washington’s OPMA.

Further, the Rutgers court held that the University Board must do more than list the exceptions that would allow a closed session (e.g., attorney-client meeting). The court recognized that the Board must only disclose “the general nature of the subject to be discussed.” But, simply listing the exception without describing the subject matter was inadequate (e.g., when discussing legal dispute over a contract, the Board should announce the contract that is subject to discussion). The Rutgers ruling is not dissimilar to the recent Washington Supreme Court decision under the Public Records Act that requires an identification of claimed exempt documents not only by the basis for the exception to disclosure, but also an explanation of why the exception applies. See September 17, 2010 posting on this site, “Washington Supreme Court issues comprehensive public records act decision.”

New Jersey Appellate Court Holds Judicial Privilege May Not Be Absolute Outside Traditional Litigation Setting; Expunged Criminal Record

Milt Rowland — Thu, 04 Feb 2010 10:13:45 -0800

In Nunez v. Pachman, 2009 WL 5084084 (N.J. Super., A.D., Dec. 29, 2009), the Court was called upon to decide whether a verbal reference in an arbitration to an expunged criminal record could violate a reasonable expectation of privacy and give rise to a cause of action sounding in tort. In New Jersey, “expungement” requires “all” records of a conviction to be destroyed. This in turn can give rise to a reasonable expectation of privacy. The court noted that other states’ laws on expungement may be less strict, and cited cases holding that no claim for violation of a right to privacy existed in those states, under different expungement laws.

The absolute privilege from defamation actions for statements made in judicial proceedings may not apply outside traditional judicial litigation for a, because the protections from wrongful disclosure, like motions in limine, court-ordered sealing of documents, etc., may not apply. The court held that protection of attorneys and witnesses in arbitrations unrelated to the subject matter of the privacy claim (here, in a union grievance arbitration, the fact that the union member had been arrested and convicted, though the conviction was expunged, the expunged conviction was not truly germane to the proceedings) was only qualified immunity, and the attorney could be liable for invasion of privacy unless, on remand, the attorney satisfied a several-factor test.

Thus when records are made privileged or otherwise exempt from disclosure, there may be some basis for a claim that revelation of those records outside the traditional judicial setting could give rise to liability, even though the case was in alternative dispute resolution.