Sometimes I receive questions that I believe may be of general interest. Here is one such question and my answer to it.
I have a question for you on OPRA and executive session minutes. My municipal council regularly meets in executive session. But, when I submit an OPRA request for those executive session minutes, my request is denied because the municipal clerk hasn’t yet written up the executive session minutes even though several months have passed since the executive meeting was held. The clerk tells me that this doesn’t violate OPRA because she’s not required to give me records that don’t exist. What can I do about this?
The Clerk is correct that OPRA doesn’t require her to produce records that don’t exist. But, she’s only telling you half the story.
The Senator Byron M. Baer Open Public Meetings Act (OPMA) (click here for the full text of it) requires that meeting minutes be made “promptly available to the public to the extent that making such matters public shall not be inconsistent with” the section of OPMA that allows certain matters to remain confidential. (See N.J.S.A. 10:4-14.)
So, regardless of OPRA, public bodies are legally obligated by OPMA to make at least redacted (i.e. blacked out) versions of their executive session minutes “promptly” available to the public. What does “promptly” mean? For the answer, please see my blog article here.
So, suppose the public body, despite knowing that OPMA requires it to make its minutes “promptly available,” simply ignores this requirement. What do you do then?
There are only two ways to enforce the OPMA: 1) get the county prosecutor or Attorney General to enforce it (see N.J.S.A. 10:4-17), and 2) file a lawsuit to get a court order requiring compliance (see N.J.S.A. 10:4-16). Both methods have their plusses and minuses.
The big advantage of complaining to the county prosecutor or Attorney General is that it’s free and relatively easy to do. You could simply send a short letter to the prosecutor or Attorney General saying
“As of [date], the [name of public body] has still not made even redacted minutes of its [date] meeting available to the public, even though [number] months have elapsed. I believe that this violates N.J.S.A. 10:4-14 which requires minutes to be made “promptly available.” I ask that your office, in accordance with N.J.S.A. 10:4-17, investigate this matter and assess civil penalties against the elected officials who are violating the law, if you believe this to be warranted.”
If you were to send a copy of that the letter to the public body, it might scare it into compliance. It is more likely, however, that both the prosecutor/Attorney General and the public body will simply ignore your letter. Unfortunately, prosecutors typically have an unofficial policy of not enforcing OPMA and many public bodies are aware of that policy.
The other way to go is to file a lawsuit against the offending public body. The problem with this method is that OPMA, unlike the OPRA, does not provide a successful plaintiff with his or her attorney fees. So, if decide to hire a lawyer file suit on your behalf, the court will not make the public body pay for your lawyer no matter how strong your case is. So, unless you’re wealthy enough to afford to pay a lawyer, you may have to sue without an attorney. And, the court will typically make the public body pay your out-of-pocket costs of filing a suit ($200 initial filing fee and $30 for each motion, etc.) if you win.
When confronted with this problem, I like to threaten the public body with a lawsuit and try to convince them to produce their minutes more promptly. A example of my threat is on-line here.
Please feel free to borrow from it to whatever extent it may be helpful.