UPDATE (8/22/2015) – See bottom of this post for the list of case documents to date.
July 9, 2015
For immediate release
New Jersey Foundation for Open Government (NJFOG)
The Housing Authority used to keep minutes for its non-public meetings – they are required to – but stopped a few years ago.
At 10:00 a.m. on July 10, Union County Superior Court Judge James Hely will hear arguments as to whether or not the Summit Housing Authority’s properly complied with the State’s Open Public Records Act.
In a lawsuit filed on May 29 against the Authority and its Custodian of Records (Docket No. UNN-L-1927-15), the New Jersey Foundation for Open Government (NJFOG) has alleged violations of both the Open Public Records Act (OPRA) and Open Public Meetings Act (OPMA). OPRA counts will be heard on July 10, as mentioned above. OPMA counts will be addressed at a future date.
The lawsuit is the latest installment of NJFOG’s “affirmative litigation” initiative, begun in 2014, intended to give teeth to the State’s open public meetings and records laws and to increase compliance by public agencies statewide.
“OPMA and OPRA violations are commonplace, unfortunately. Citizens are often hesitant to bring suit to enforce the law, especially for OPMA violations, because, until reform is passed by the Legislature, there’s no mandate requiring a court to award legal fees in an OPMA case. Few people can bear the financial burden of bringing a lawsuit, so there is a need for an organization like NJFOG to step in – to do what individuals can’t – in order to protect the rights of the public,” said NJFOG President Walter Luers.
The suit stems from an April 9, 2015 OPRA request filed by NJFOG Treasurer and Affirmative Litigation Committee member John Paff seeking the minutes of the Housing Authority’s three most recent non-public (closed or executive) session meetings, the motions or resolutions authorizing those three closed sessions, and motions or resolutions for any closed sessions held subsequently. (Note: Prior to excluding the public from a meeting, a public body must pass a written resolution or oral motion to enter into executive session.)
In a short response dated April 17, 2015 that included no records, Joseph M. Billy, Jr., Executive Director of the Housing Authority and its Records Custodian, stated that the Authority’s board motions and votes to enter executive session as needed but that no written resolutions are prepared. He went on to state, rather incredulously, that “minutes of executive sessions are not maintained and therefore are unavailable.”
NJFOG was able to find records from 2010, including 1) a written resolution to enter executive session on May 26, 2010, and 2) minutes for an executive session held on October 27, 2010.
What’s interesting is that this shows the agency kept minutes of their closed session meetings as recently as four or five years ago.
The Authority’s website includes another salient detail — minutes for the public portion of a meeting on September 17, 2014 show that the board entered into executive session at that meeting. No minutes exist for that closed session, apparently.
In its June 24 answer to the complaint, the Housing Authority states that Mr. Billy had interpreted Paff’s OPRA request to be only for records of meetings held since Billy became Executive Director on April 1, 2013.
Paff’s request was both clear and concise, however, and mentions no time frame.
NJFOG’s response to the Authority includes the following passage: “OPRA does not limit OPRA requests to the tenure or term of office of the Records Custodian. If the legislature meant for this to happen, it would be in the list of exceptions to OPRA. It would also go against public policy, as a public entity could change custodians frequently to avoid production of documents. In addition, Billy in his original response to…Paff fails to mention that the denial is only for his tenure…”
While admitting it should have prepared minutes for its executive sessions and didn’t during Billy’s tenure as director, the Authority argues that it didn’t violate OPRA by not providing the records in response to Paff’s request because the statute doesn’t require a public agency to create records to fill an OPRA request.
“The Authority is correct that the Records Act does not require it to disclose non-existent records,” said Paff. “What the Authority ignores, however, is its responsibility under the Meetings Act to keep minutes of all its meetings, including executive or closed meetings, and to promptly disclose those minutes to the public.”
Besides the failure to maintain meeting minutes for executive sessions, alleged violations of the Open Public Meetings Act include the use of executive session motions/resolutions that are not sufficiently detailed.
Here are all the case documents so far with the most recent listed first (as of 8/22/2015):
NJFOG is the only non-profit organization in the state dedicated solely to improving New Jersey’s Open Public Records Act (OPRA) and Open Public Meetings Act (OPMA) and working to educate the public about these laws and increase governmental compliance.
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