Case Name: Dean Smith v. Swedesboro-Woolwich School District et al.
Docket Number: GLO-L-652-15 (trial level); A-000840-15 (Appellate Division)
County / Vicinage: Gloucester
Filing Date: May 15, 2015
Judge: Curio, Georgia M. (trial level)
Status: Closed. (Appellate Division ruling was released on March 6, 2017.)
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”. After having reviewed the un-redacted minutes, Superior Court Judge Georgia M. Curio ruled in September 2015 that redactions were proper and covered by one or more legal exemptions. Smith appealed the ruling.
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 Appellate Division ruling is due to be released on March 6, 2017. For ten days following, you can find the ruling under the “unpublished opinions” in the right-hand column on the Judiciary’s website.
Summary of Appellate Division decision released on March 6, 2017:
The Appellate Division affirmed the Trial Court, which held that the redaction of all of the text of executive session minutes was a justified denial. The Appellate Division held that the Defendant’s discussion of whether to renew its contract with the district’s superintendent constituted a personnel matter and also was protected by the attorney-client privilege. The Court held that all of the redactions were justified because the discussion of whether to renew the contract was sufficiently commingled with attorney advice such that no portion of the redacted minutes could be disclosed without disclosing protected personnel information and attorney/client communications.
The Court also stated that when addressing the confidentiality of executive session minutes, OPRA must be read in conjunction with the Open Public Meetings Act. The Court was suggesting that if a body enters closed session under OPMA, the minutes that memorialize that meeting can be exempt under OPRA if the public agency discusses a topic in closed session as permitted under OPMA.
Finally, while the Court agreed that the plaintiff was entitled to the facts of the matter as set forth in the minutes, the Court held that the privilege log (see footnote 1) provided by the Defendants was sufficient to put the Plaintiff on notice of the facts, and that disclosure of portions of the executive session minutes would not have provided the Plaintiff with additional facts. While privilege logs should not be a substitute for the disclosure of portions of documents, at least in this case the privilege log was provided with the redacted documents, as opposed to after litigation was commenced.
Although this decision is unpublished, which means that other Courts are not bound by it, this decision will make it more likely that public agencies will be more aggressive in withholding executive session minutes and information.
(1) A privilege log (or Vaughn Index) is a summarized list that gives a general description for each redaction along with the legal basis for each.
Plaintiff’s brief and appendix
School Board’s brief and appendix
Plaintiff’s letter in lieu of a reply brief
Can meeting minutes be 100% redacted? Appellate Court to weigh in.
Swedesboro Council improves executive session resolutions.
Swedesboro-Woolwich School District Executive Sessions
Unpublished trial court OPRA opinion.