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The Sunshine Law and OPRA

E-Mailers Beware

 

John Gillespie  Brian Guest  
By Stuart R. Keonig  
League Senior Assistant Counsel
Stickel, Keonig & Sullivan  

Are you doing all you can to comply with the Open Public Meetings Act and Open Public Records Act—particularly when you communicate on-line? Unfortunately, many public officials are not aware of the legal implications of the interaction between these two statutes and the rise in the use of electronic communications (e-mail; text messages; even “Facebook” or “Twitter”).

The Open Public Meetings Act (OPMA) defines a meeting as: “…any gathering whether corporeal or by means of communication equipment, which is attended by, or open to, all of the members of the public body, held with the intent, on the part of the members of the body present, to discuss or act as a unit upon specific business of that body…..” It is not necessary for the meeting to occur at a specific location (such as in the municipal building), nor that a quorum be physically present (the meeting can occur if “corporeal,” or by means of communication equipment).

When communication equipment is used by members of the governing body to discuss public business, questions can arise as to whether a public meeting is taking place. For example, suppose that the Township Administrator e-mails a copy of correspondence from a local citizen suggesting that the town should increase fees for mercantile licenses. Council Member #1 sends an e-mail to the other four Council Members stating that he thinks this is a great idea and the fee should be raised by $20. After further e-mail exchanges, Council Members # 2 and 3 agree that the fee should be raised by this amount. Assuming three members constitutes a quorum of Council, a decision has tentatively been made regarding public business. It could be argued that this type of exchange is a “meeting”, and because no notice of same was ever given, it violates the OPMA.

The legislative underpinnings of OPMA set forth in N.J.S.A. 10:4-7 are instructive:

The Legislature finds and declares that the right of the public to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies is vital to the enhancement and proper functioning of the democratic process; that secrecy in public affairs undermines the faith of the public in government and the public’s effectiveness in fulfilling its role in a democratic society, and hereby declares it to be the public policy of this State to insure the right of its citizens to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed or acted upon in any way…

The ease and convenience of e-mail and text messaging can, for all intents and purposes, lead to circumstances where a majority of the governing body is “meeting” and making decisions outside of a regularly advertised meeting of that public body. “Send All” and “Reply to All” settings are particularly dangerous in this context.

hand on open cell phone sending email
Government officials should consider the Sunshine and OPRA laws before pushing “send.”

It is certainly appropriate, even vital, to an elected official’s performance of his/her duties to stay informed regarding issues of the day. It is not the intent of this article to discourage the practice of a Township Manager, Clerk, or elected official, from sending, via e-mail or other means, copies of significant correspondence, documents or information regarding ongoing matters to elected officials on a timely basis between meetings. However, substantive discussions of the import of such information and action to be taken should not occur except in compliance with the OPMA.

New Jersey Courts are fairly emphatic when addressing the purpose of the OPMA. “The long-standing appreciation of the importance of open government stems, in part, from the understanding that openness reduces public corruption.” Taurus v. Pine Hill, 189 N.J. 497, 508 (2007). Debate and formal action can only be taken during a properly noticed public meeting to avoid challenges to, and invalidation of, actions. In Caldwell v. Lambrou, the court voided a series of zoning variances because a portion of the final meeting during which they were debated was conducted in closed session. 161 N.J. Super. 2874, 291-92 (Law Div. 1978). In today’s environment, with its pervasive suspicion of governmental actions, it is not difficult to envision a court voiding municipal action that was set in motion, and generally vetted, via private e-mails between the members of a governing body.

An equally important consideration is that e-mails and text messages discussing public business have been held to be written public records subject to the Open Pubic Records Act (OPRA.) Note that whether a document or message constitutes a government record does not depend on its source or storage location. Thus, an e-mail message from one Council Member to another Council Member using their private personal computers is, nevertheless, a public record if the topic of discussion is a matter of public business. (Note that the terms “government record” and “public record” are often used interchangeably.)

Although there are numerous caveats and exceptions to this premise with which officials should be familiar, the following is the core definition of a government record found at N.J.S.A. 47:1A-1.1:

’Government record’ or ‘record’ means any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof…

When the Custodian of Records receives an OPRA request, that individual has an affirmative obligation under the statute to seek out government records wherever they are located and regardless of who has possession of them.

In Opinion 2005-127, the Government Records Council (GRC) found that a Mayor’s e-mail account was an accessible public record. Originally, the custodian claimed that the e-mails were not government records because they were not maintained in the custodian’s files. The GRC concluded that the Mayor used his personal e-mail account to conduct municipal business, therefore making those e-mails government records under OPRA. A government record, therefore, is not defined by the source or location of its emanation (private e-mail account vs. public e-mail account). It is still recommended, though, that e-mails among public officials be conducted on e-mail accounts of the public entity and not private accounts. At least this way, if a separate e-mail account is set up for public business, there is less risk that private matters will inadvertently be made public.

The State Division of Archives and Records Management (DARM) has established guidelines and best practices for managing electronic mail. A copy of DARM’s circular 03-20-ST is available on the division’s website at: www.njarchives.org/links/electronic.html. DARM has established retention policies and timeframes for a vast number of public records. Local governments should manage their records in accord with these recommendations. Note, however, that it has been held that simply following the process and obtaining approval for record destruction, does not relieve the Records Custodian from producing the record in response to an OPRA request if the record has, in fact, not yet actually been destroyed. In this same vein, the deleting of an e-mail discussing public business by a government official can constitute a violation of state record retention requirements.

The bottom line is that while Internet communications and texting are very convenient, they also present legal issues which are often overlooked, but which have significant implications to public entities and public officials.

 

Article published in New Jersey Municipalities, November 2010

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