UPDATE (3/4/2017): The Appellate Division ruling will be available online after 10 a.m. on Monday, March 6, 2017. See the “unpublished opinions” in the right-hand column on the Judiciary’s web site HERE.
When providing copies of closed (or executive) session minutes under OPRA, public agencies may redact (black out text) as appropriate. For example, they may redact for open issues in order to protect a negotiating position with regard to an unresolved settlement or contract. Over time, matters resolve and there may no longer be need for secrecy. Thus, we would expect to see fewer redactions, if any, for a meeting that took place several years ago versus one held a few months ago. Even for recent closed session meetings, there would seem little need to redact everything — for instance, it seems the name of the person making a comment could be shown along with text that shows the comment topic, even if there is legitimate reason to redact the substance of the comment itself.
There is an interesting case now before the Appellate Division — Dean Smith v. Swedesboro-Woolwich School District (Gloucester County)– that addresses this very issue. In response to an OPRA request for minutes of a closed School Board meeting held in January 2014, some 14 months prior to his OPRA request, Smith received minutes that were entirely redacted except for the date, page number, and subject headers like “personnel issue” or “superintendent’s contract”.
Superior Court Judge Georgia M. Curio ruled in September of 2015, after having reviewed the unredacted minutes, that redactions were proper and covered by one or more legal exemptions.
Smith’s attorney, Donald M. Doherty Jr., pointed to a 1991 NJ Supreme Court opinion that the OPRA exception allowing for private discussion of personnel matters was “‘designed to enable the public body to determine the appropriate action … [and] not to withhold from the public either the public body’s determination’ or the rational for such determination.” He argued that the School Board had not met its burden in justifying the non-disclosure of details some 14 months after its meeting. Statements of exemption applied on a blanket basis, as provided in the OPRA response, “do not allow the public to know or discern with any reasonable clarity what was discussed in the nonpublic meetings or what actions were taken,” Doherty argued.
The case has been appealed and has Appellate Docket No. A-000840-15.
Read more about the case and link to case documents HERE.