Judge Says Bare-Bones Agendas For Public Meetings Won't Suffice

, New Jersey Law Journal

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When public entities publish meeting agendas, they must give more than a list of items to be addressed, a New Jersey judge ruled on Tuesday in a case of first impression.

Underlying reports and documents must be made available unless privileged or exempt from public access, Bergen County Assignment Judge Peter Doyne held in Opderbeck v. Midland Park Board of Education.

"These attachments are already produced in electronic form for the board members and are necessary for the public to understand the agenda," he said.

The suit was brought pro se by Seton Hall University Law School professor David Opderbeck, who was trying to obtain information from the school board in Midland Park, where he and his family live.

The board withheld the records based in part on a formal advisory opinion by the New Jersey attorney general in 1976, a year after the Open Public Meetings Act was enacted and while William Hyland held the office.

The law did not define "agenda," and Opinion 19-1976, in response to questions from the state education commissioner, said that it referred to the list of items to be discussed and not "supportive materials relative to such items."

It also said the supporting documents could be obtained through a records request.

That was the same position taken by Midland Park.

Opderbeck's wife Susan asked for attachments for the May 28, 2013, meeting after she accessed the agenda online. The board told her she could get them after the fact by way of an Open Public Records Act request.

Opderbeck, whose academic work focuses on cybersecurity, information policy and regulation of access to scientific and technological information, then emailed the board.

He heard back from board counsel Steven Fogarty, who advised him that OPMA only mandates 48 hours' advance notice of a time, date and location and, to the extent known, the agenda, and he cited the attorney general's opinion.

Opderbeck showed up at the June 5 meeting and asked the board to change its policy on attachments, but it failed to take up the request.

After three days of failing to reach Fogarty by phone, Opderbeck emailed him a draft complaint as "a final effort to resolve this matter amicably" and asked that the board agree to supply attachments along with the agendas posted on its website.

The board initially seemed agreeable, but when it finally took up the issue at the Sept. 17 meeting, some members wanted exceptions and expressed concern about "overloading" the public with information and copying costs.

Opderbeck argued there would be no added costs because the documents already had to be scanned for board members, but on Oct. 15, the board voted not to amend the policy.

Opderbeck's next move was an Oct. 16 OPRA request asking the board to mail him its agendas, including "all attachments, appendices and related records" when it distributes them to members prior to each meeting.

The board refused, saying he was asking for documents before they existed and the request "would exist in perpetuity."

The complaint was filed on Nov. 1, and Doyne heard oral argument on Monday.

Doyne called the attachments "not simply supplemental" but "an integral element necessary to understand the agenda" and concluded they were necessary to provide legally adequate notice.

He said he did not understand the objection given that the surrounding school districts of Ridgewood, Waldwick and Wyckoff provide the attachments, and he saw the process as requiring only one additional step to ensure that privileged and exempt documents are not posted.

Fogarty, of Fair Lawn's Fogarty & Hara, says the opinion has ramifications for public entities at the local, county and state level and will burden them with having to review agenda attachments with their attorneys.

Further, the ruling does not address how to deal with attachments to agendas that are not posted online but published in newspapers. The board will not decide on an appeal until after the first of the year, he adds.

Opderbeck says he was "surprised at what my local board was doing" and could not understand why it would not provide the documents.

He believes Doyne "wanted to put something out there that withholding these documents is not acceptable."

New Jersey School Boards Association spokesman Frank Belluscio III says, "To the extent that the ruling addresses electronic posting, it is significant."■

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