June 17, 2013
Re: Amendments to the Open Public Meetings Act and Open Public Records Act
As we have previously reported (see February 8 Dear Mayor Letter), S-2511, which amends the Open Public Meetings Act, and S-2512, which amends the Open Public Records Act, were recently further amended by the Senate and are awaiting consideration by the full Senate. We anticipate that the Senate will take action on the bill before the end of June.
Over the course of the year, Senator Weinberg has met with the League and has made significant changes to both bills to address most of our concerns.
While we appreciate Senator Weinberg’s efforts, the League, along with the Conference of Mayors, still remains opposed to the legislation due to concerns including to the following issues:
1. Subcommittees (OPMA): The definition of subcommittees has been changed to “any subordinate committee of a public body, except the Legislature, regardless of label, that is formally created by that body, comprised of two or more members, but less than a quorum, of the public body, and recognized by the public body as a subcommittee thereof.”
The bill requires that a public body determines that if a subcommittee meets parameters of the definition above then the public body must determine if a subcommittee meeting will be open to the public. If the meeting is open to the public, adequate notice under the Open Public Meetings Act must be provided.
Regardless if the subcommittee meeting is open to the public, they would be required to prepare a report of their meetings that must include number of meetings, names of members of the committee and a concise statement of the matters discussed. The public body is required to prepare a schedule of when the subcommittee reports must be filed, however, every subcommittee must file at least one report with the public body. A subcommittee report is available for public access in the same manner as meeting minutes of the public body. While the bill requires reports of subcommittees it does state that “…other requirements applicable to meetings of public bodies shall not apply to meetings of subcommittees.”
The League has long argued that the purpose of subcommittees is to make recommendations to the governing body for the governing body to take action. Subcommittees do not expend public funds nor make binding decisions. That power remains with the governing body. Therefore, they should not be subject to the provisions of the Open Public Meetings Act.
2. Public Comment (OPMA): The amended bill requires that the public body set aside at least 1 hour for public comments. Such comment period may be limited solely to items listed on the agenda so long as an additional public comment period is set aside at the meeting at which time a member of the public may discuss any issue he or she feels may be of concern to and within the authority of the public body. A shorter time is permissible if all the members at the meeting who wished to speak had the opportunity to speak. In addition, each speaker is permitted at least 3 minutes during public comment. The public body may limit the amount of time a member of the public can speak in excess of 3 minutes. The League strongly believes that the local governing body should be able to control and govern the conduct of their meetings to meet their local needs not as mandated by state statute.
3. Acceptance of Written Comments from the Public (OPMA): The amendments require the public body to accept written comments from the public on any issue that the individual feels may be of concern and within the authority of the public body. Written comments may be delivered in person, by mail, e-mail or fax prior to the start of a meeting. The public member must provide enough copies to ensure that each member of the public body will receive a copy. There are a multitude of problems with this new provision. First, it is contrary to the Municipal Land Use Law with regard to Planning Boards and Zoning Boards. Those boards specifically do not accept written comments as the people have the right to cross-examine individuals at these meetings. Secondly, this mandate is creating a new public record. Finally, the bill is silent on how the written comments are to be addressed at the meeting and in the minutes.
4. Expands the definition of Government Records (OPRA): The bill expands the definition of government record to include a record that is “required by law to be made, maintained or kept on file”. Currently, if an OPRA request is received for a document that does not exists the OPRA request is denied and there is no violation of OPRA. By expanding the definition, a Records Custodians will be in violation of OPRA if the record was required to be made (i.e. old municipal budget) but they are unable to locate the archived record. The bill does provide protections to limit the record custodian liability but the Records Custodian will still be in violation of OPRA.
5. Personal Identifying Information (OPRA): Exempts personal identifying information of persons under the age of 18, except driver information by Motor Vehicle Commission as permitted by law, as well as e-mail addresses provided to the government entity for the sole purpose of receiving official public notifications from disclosure under OPRA. The League strongly believes that while government records should be readily accessible and transparent there must be an appropriate balance between the need for openness and transparency in government and citizens’ reasonable expectation of privacy. When the bill was initially passed in 2001, the bill’s co-sponsor Senator Robert Martin noted the Privacy Study Commission “would also be established to examine the privacy issued raised by providing greater access to public records. They will recommend specific measures to the Legislature to deal with these issues and safeguard the privacy rights of individuals”. To that end, the League has suggested that the bill be amended to include the recommendations of the Privacy Study Commission Report that home and cell telephone numbers should not be disclosed and individuals should be permitted to opt-out of disclosing their home addresses.
6. Commercial Use of Public Records (OPRA): The bill does not address Commercial Use of Public Records as recommended by the Privacy Study Commission Report. Since the enactment of OPRA, municipalities have experienced a marked increase in records requests from private companies who use record data bases for purely commercial benefit to themselves at the expense of taxpayers. Taxpayers pay for the development and maintenance of the information. In addition, there needs to be consideration of the balance of our residents reasonable expectation of privacy versus the public’s right to know. The Privacy Study Commission acknowledged this is an issue with the Open Public Records Act that should be addressed. The report found that "the Legislature and/or the Governor should consider abuses arising from the commercial use of information, such as data-mining, as well as the benefits of access, such as aiding local businesses. Along with transparency of government comes the responsibility to safeguard citizens’ reasonable expectation of privacy.” In addition, the “Legislature and/or Governor should consider the proposition that when the secondary and derivative use of a public record is a commercial/profit making use, the commercial user should be expected to contribute to the cost recovery of developing and maintaining such records.”
7. Prevailing Attorney Fees (OPRA): The bill was further amended to revert back to the existing provision making prevailing attorney fees mandatory instead of permissive. The League advocated for and Senator Weinberg initially agreed to make the prevailing attorney fee permissive. The amendments now reverse this course. The League strongly believes that the Government Records Council and the Courts need the flexibility to award reasonable attorney’s fees based on the given circumstances of a particular case. However, the amendments included language that under appropriate circumstances, the rules of the court and N.J.S.A. 2A:15-59.1 shall apply for frivolous causes of action. As such, if a judge determines that the nonprevailing party's complaint was frivolous the municipality can make an application to the court which heard the matter seeking reasonable litigation costs and reasonable attorney fees.
8. Special Service Charge (OPRA): The amendments mandate that a special service charge may only be imposed when the time expended in responding to the request exceeds a total of four (4) hours. This provision assumes that records custodian should spend at least half of their work day responding to OPRA request. The provision does not take into account the operation and needs of smaller municipalities. Having a staff member removed from normal duties for up to four hours can and will impact municipal operations.
9. Duplication rates established in advance (OPRA): Requires municipalities only to establish in advance by ordinance the rates for duplication of particular records when the actual cost of copying exceeds the foregoing rates. In some circumstances municipality will not know in enough advance time to adopt an ordinance to charge the actual cost of duplicating a record. Also it does provide the municipality with flexibility to change the fee for actual cost as their cost changes due to the marketplace. Finally, this provision only applies to municipalities not school boards, counties, special districts or the State.
10. Definition of “Quasi-governmental agency”(OPMA & OPRA): The amendments changed the definition of “Quasi-governmental agency” by removing the phrase “…is the primary source of funding” to “…is the source of funding”. We are uncertain of the impact on the changing of the definition and how it will impact the public agency as the source of funding as opposed to the primary source of funding. Does that mean any portion of the funding or the sole source of funding? It is a bit ambiguous.
11. Exemption of the Legislature (OPMA & OPRA): Both bills continue to exempt the Legislature from many requirements of the Open Public Meetings Act and all of the requirements of the Open Public Records Act. The League has strongly argued that in the interest of transparency and openness, the various exceptions in the Open Public Meetings Act and Open Public Records Act that apply to the legislature and the legislators should be removed. The rules that the legislation makes applicable to other governmental bodies should apply equally to all governmental levels and officials.
We urge you to contact your Senator and express our continued concerns regarding S-2511 and S-2512.
If you have any questions or need additional information please contact Lori Buckelew at email@example.com or 609-695-3481 x112.
Very truly yours,
Janice S. Mironov, President
Mayor, East Windsor, Township
Suzanne M. Walters, 1st Vice President
Mayor, Stone Harbor
|Gerald J. Tarantolo, 2nd Vice President
Joseph Tempesta, Jr., 3rd Vice President
Mayor, West Caldwell