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Appellate Division Affirms OPMA Does Not Require BOE to Discuss Proposed Employment Action Prior to Voting

On May 17, 2019, the New Jersey Appellate Division in Centrella v. Prospect Park Board of Education issued an unpublished decision confirming that, under the Open Public Meetings Act (“OPMA”), a public entity is not required to discuss a proposed employment action prior to actually voting on that action. This case involved a former Prospect Park Board of Education (“Board”) employee’s appeal under the OPMA in which she alleged that the Board improperly eliminated her position of speech language specialist and terminated her tenured position when the Board did not discuss the proposed action at the same meeting in which it voted to take that action.

The proposed termination of Plaintiff’s position was listed on the Board’s publicly available agenda, which also explained the reasons for the recommended action, including reasons of economy. In preparation of the Board’s June 17, 2017 meeting, Plaintiff received a Rice notice, to which she responded that she wished to have her employment discussed at the public portion of the meeting rather than privately in executive session. Without discussion, the Board voted to approve the resolution involving Plaintiff, along with fourteen other employment resolutions. A call for discussion amongst Board members was made, to which Board members had no comments.

Relying on Kean Federation of Teachers, the Appellate Division affirmed the trial court’s dismissal of Plaintiff’s complaint. In rejecting Plaintiff’s arguments, the Appellate Division confirmed that OPMA does not mandate that a public entity engage in any particular level of discussion at a public meeting. Instead, OPMA gives a public employee the right to require the public entity to conduct its discussion, if any, in public rather than in executive session. While Plaintiff requested that her employment be discussed in public session, she could not compel the Board to have a discussion prior to its voting on her employment.

 


Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA.

Appellate Division Limits Attorneys’ Fees in OPRA Case

By:  Sanmathi (Sanu) Dev, Esq.

On November 27, 2017, the New Jersey Appellate Division in Kennedy v. Montclair Center Corporation Business Improvement District issued an unpublished decision in which it determined that the Open Public Records Act (“OPRA”) does not entitle a plaintiff to attorneys’ fees after the public agency satisfied his document request.

Scott Kennedy made an OPRA request to the Montclair Center Corporation Business Improvement District (“Montclair Center”). Not having received an adequate response, Kennedy filed suit against the Montclair Center alleging that it had no OPRA custodian, had no OPRA request form, and charged excessive copying costs in violation of OPRA. After the lawsuit was filed, the Montclair Center provided the requested documents to Kennedy but maintained its position that it was not a public agency subject to OPRA. In a separate action decided in 2014, the Appellate Division ruled that the Montclair Center was a public agency subject to OPRA.[1]

On remand, the trial court addressed the issue of attorneys’ fees. Kennedy argued that he was a prevailing party entitled to attorneys’ fees for both receiving the documents from the Montclair Center and for obtaining a decision from the Appellate Division that the Montclair Center was a public agency. The trial court disagreed and only awarded Kennedy counsel fees through the receipt of the documents. Kennedy then appealed to the Appellate Division.

The Appellate Division disagreed with Kennedy and affirmed the trial court. In analyzing N.J.S.A. 47:1A-6, the Appellate Division reasoned that the fee-shifting provision of OPRA only applies to successful challenges regarding access to public records. Further, the right to counsel fees only belongs to an OPRA requestor. The Appellate Division explained that once a party receives full access to requested documents, the party is no longer considered a requestor. In short, a party that chooses to pursue additional relief after obtaining access, even if the relief sought is under OPRA, is no longer an OPRA requestor. Thus, when Kennedy pursued his lawsuit against the Montclair Center after it provided him with the documents, he was no longer a requestor entitled to counsel fees.

[1] Kennedy v. Montclair Ctr. Corp. Bus. Improvement Dist., 2014 N.J. Super. Unpub. LEXIS 1654 (App. Div. June 24, 2014)

Public Entity Defeats Lawsuit Seeking Attorney’s Fees in OPRA Case

By:  Sanmathi (Sanu) Dev, Esq.

On April 24, 2017, the New Jersey Superior Court, Camden County, denied a plaintiff’s request for attorney’s fees under the Open Public Records Act (“OPRA”) in the case Grieco v. Borough of Haddon Heights. The Court determined that the public entity inadvertently omitted a record in response to the plaintiff’s OPRA request and that she made no attempt to cooperate with the agency to acquire the missing document prior to initiating a formal lawsuit.

Heather Grieco submitted an OPRA request to the Borough of Haddon Heights (“Borough”) seeking notices to newspapers for all council meetings from November 1, 2014 to April 1, 2015. Within the seven-day deadline imposed by OPRA, the Borough provided documents responsive to Grieco’s request, which included records relating to council meetings held in 2015. However, the Borough did not include proof of publication for the meetings held in 2014.

Two weeks after the Borough’s initial response, Ms. Grieco filed suit in the New Jersey Superior Court alleging violations of OPRA and seeking attorney’s fees. Upon receipt of the lawsuit, the Borough became aware for the first time that it had omitted one of the documents requested by Ms. Grieco. Within three days of learning of this omission, the Borough provided the missing document.

In OPRA cases, if the Court finds that the government entity violated the statute, then the requestor is generally considered a prevailing party entitled to attorney’s fees. The Court considers whether the lawsuit was a catalyst in causing the public body to comply with the law. In addition, the Court applies a fact-sensitive inquiry in evaluating the government agency’s reasonableness and motivations behind such conduct.

In this case, the Court determined that the Borough inadvertently omitted one responsive document to Ms. Grieco’s OPRA request and only became aware of the omission upon service of the lawsuit. The Court found it significant that almost immediately after the Borough discovered the error, it provided the missing document. Further, the Court determined that the Borough did not act with malice or ill will, as the error was caused by a change in personnel handling the response to the OPRA request. Specifically, the Borough employee who initially started processing the response transferred the task to another employee because the former employee suddenly needed to attend to a critically ill spouse.

Further, the Court considered that Ms. Grieco made no attempt to obtain the missing document from the Borough after receiving the initial records and instead resorted to litigation. The Court explained that the cooperative spirit of OPRA requires some sort of follow up communication by the requestor to the public entity to notify it of a mistake.

Fortunately for the Borough, its good faith efforts to comply with OPRA precluded the requestor from obtaining attorney’s fees through litigation.

OPRA Does Not Require Public Entities to Create Records Not Already in Existence

By:  Sanmathi (Sanu) Dev

In a published decision dated April 18, 2016, the New Jersey Appellate Division in Paff v. Galloway Township, 444 N.J. Super. 495 (App. Div. 2016) upheld a public entity’s denial of an Open Public Records Act (“OPRA”) request for email logs, finding that OPRA creates no obligation on the public entity to create new records that do not already exist.  Plaintiff submitted an OPRA request to Galloway Township (“Township”) for an itemized list showing the sender, recipient, date, and subject of all emails sent by the Township’s Clerk and Chief of Police for a certain time period.  It is important to note that Plaintiff requested logs of the emails, which did not exist at the time the OPRA request was made, rather than the actual emails.  After the Township denied the request, Plaintiff sued in Superior Court seeking to compel the Township create and provide the email logs.

While the OPRA statute broadly defines a “government record,” to which a member of the public has access, the statute in no way mandates that a public entity create a record or document. The Courts have routinely denied OPRA requests for information, as opposed to a request for a specific government record. The Appellate Division reasoned that the metadata sought by Plaintiff in the form of email logs containing the sender, recipient, etc. of the email constituted information and not a record. Notwithstanding the fact that the information sought was stored or maintained electronically in other government records, namely the emails, the logs themselves are not government records because they would need to be newly created solely in response to a request for information and did not exist prior to the OPRA request.

The Appellate Division rejected Plaintiff’s arguments that it required little effort for the Township to generate the email logs based on its technology and that the Township previously implemented an informal policy of creating these logs in response to certain OPRA requests. Even if a public entity has the technical capacity to create the information or had a past practice of creating the logs, these factors are not compelling because nothing under OPRA requires the creation of new government records after an OPRA request is submitted.

The bottom line – an OPRA request, by definition, must seek a specific government record. If the OPRA request asks for information and necessitates the public entity to create a new document that was not in existence before the request was made, the public entity may deny the request, absent any internal policy.