2003-56

Final Decision

At its December 11, 2003 public meeting, the Government Records Council considered the Acting Executive Director’s December 2, 2003 Findings and Recommendations. Based on the Council’s review of same, along with the submissions of the parties, the Council voted unanimously to accept the Acting Executive Director’s December 2, 2003 Findings and Recommendations and hereby:

1. Finds that the requested minutes of the Board Of Education (BOE) meeting at which incidents involving M.R. were discussed are “government records” pursuant to N.J.S.A. 47:1A-1.1.
2. Finds that the BOE discussed in the subject closed session the same incident for which it has received a Tort Claims Notice on behalf of M.R.. The closed session minutes relating to that meeting are exempt from disclosure pursuant to the Open Public Meetings Act as the BOE members were discussion pending or anticipated litigation, N.J.S.A. 10:4-12(b)(7).
3. Finds that the custodian responded in a timely manner, within one business day.
4. Dismisses the Complaint.

Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

Virginia Hook, Secretary
Government Records Council

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Findings and Recommendation of Executive Director

Relevant Records Requested:  Copy of minutes of Board meeting where “Dr. Robert Smith, Superintendent relayed the facts of his investigation and answered questions of the Board of Education present directly relating to my son, M.R., and the incidents of February 6^th and February 9^th 2003.”
Request Date:  April 24, 2003
Response Date:   April 25, 2003
Number of Business Days to Respond:  1 business day
Custodian:  Margaret Neathery, School Business Administrator
GRC Complaint Filed:  May 5, 2003

Executive Director’s Recommendation

This complaint challenges the denial of an OPRA request to access the closed meeting minutes of the Rumson Fair-Haven BOE at which a school incident and anticipated litigation was discussed regarding the complainant’s son, M.R. . While the minutes of meetings made, maintained, kept or received by public agencies are “government records” pursuant to OPRA, they are accessible unless confidential by statute. The Open Public Meetings Act permits public agencies to exclude the public from the portions of meetings at which such matter are discussed. N.J.S.A. 10:4-12(b)(7). The BOE has certified that it discussed in closed session the same incident for which it has received a Tort Claims Notice from the requestor.
The Acting Executive Director respectfully recommends that the Council:

1. Find that the requested minutes of the BOE meeting are “government records” pursuant to N.J.S.A. 47:1A-1.1.
2. Find that the requested Executive (“closed”) session minutes are exempt from disclosure pursuant to the Open Public Meetings Act (OPMA) at which the public body discusses anticipated litigation, N.J.S.A. 10:4-12(b)(7) and that pursuant to the BOE statement,   the BOE discussed in that closed session the same incident for which it has received a Tort Claims Notice on behalf of M.R. . 
3. Dismiss the Complaint.
4. Find that the custodian responded in a timely manner, within one business day.

Statement of Facts

April 24, 2003 – Records request

Request to the custodian of Rumson Fair-Haven BOE for a copy of the minutes of the BOE meeting “where Dr. Robert Smith, Superintendent relayed the facts of his investigation and answered questions of the Board of Education members present directly relating to my son, M.R. and the incidents of February 6^th and February 9^th 2003”.

April 25, 2003 – Custodian’s response

The custodian responded and provided an “excerpt” from the March 18^th open session minutes that involved a   discussion of an athletic award for the requestor’s son reasoning that this “related to” Mr. M.R. .  However, the custodian denied access to the Executive Session (“closed session”) minutes indicating, “minutes from executive sessions are not released when there is a possibility of litigation or until a matter is resolved.”

May 5, 2003 – GRC Complaint filed and supplemental information

The complaint challenged the denial of access to the BOE Executive Session minutes related to the investigation of the incidents on February 6^th and 9^th involving M.R. . The requester contends that the denial of access on the basis of possible litigation was an unacceptable reason.

June 19, 2003 – Custodian’s SOI

In the custodian’s SOI, BOE counsel Martin M. Barger, Esq. stated that the minutes of the Board’s Executive Session dated February 20, 2003 could not be released because “the matter discussed will be litigated”.  He attached a Title 59 Tort Claims Notice from an   attorney dated April 25, 2003 alleging damages to Mr. M.R. arising from an incident at a basketball game between Rumson and Freehold Borough.  No time or date of the incident was specified in the Tort Claims Notice.

October 23, 2003 – Custodian counsel’s letter to GRC and Executive Session BOE minutes

The letter represents that the incident in question was only discussed at the February 20, 2003 BOE meeting of the Executive Session and enclosed a copy of the minutes.  The custodian’s counsel indicated that the name of the basketball coach appeared in the minutes and presented a concern to the BOE.   

November 14, 2003 – GRC letter to custodian’s counsel requesting information

The letter requested the custodian’s counsel to affirm that the BOE minutes of February 20, 2003 was the only meeting at which Mr. M.R.’s incident involving a basketball game was discussed

November 14, 2003 – Custodian Counsel’s Email response to same

The custodian’s counsel certified that the matter described in the OPRA   request was only discussed at the February 20, 2003 Executive Session. 

November 24, 2003 – Letter from custodian’s counsel           

Letter reconfirms that the February 20, 2003 minutes was the only meeting at which Mr. M.R.’s incident was discussed. 

Analysis

Taped or written minutes of meetings held by public agencies are made in the course of official business and are “government records” pursuant to N.J.S.A. 47:1A-1.1. OPRA provides that government records are subject to public access unless exempt from access by statute. N.J.S.A. 47:1A-1, -5.

The Open Public Meetings Act, N.J.S.A. 10:4-12 provides, "[e]xcept as provided by subsection b. of this section, all meetings of public bodies shall be open to the public at all times." Subsection b provides that a public body may exclude the public only from that portion of a meeting at which the public body discusses “any pending or anticipated litigation or contract negotiation other than in subsection b. (4) herein [collective bargaining agreements] in which the public body is, or may become a party.”

To invoke this exception, the subject under discussion must be the 'pending or anticipated litigation' itself, i. e., the public body must be discussing its strategy in the litigation, the position it will take, the strengths and weaknesses of that position with respect to the litigation, possible settlements of the litigation or some other facet of the litigation itself. Attorney General's Formal Opinion 30-1976, 100 N.J.L.J. 31; Houman v. Mayor and Council of Borough of Pompton Lakes, 155 N.J.Super. 129, 145 (Law Div. 1977).

In this matter, the custodian admits that the minutes of the February 20, 2003 BOE closed session are the government records and certifies they are the records responsive to the OPRA requestor. He alleges those records are confidential pursuant to N.J.S.A. 10:4-12(b)7 which permits exclusion of the public from Board discussions of anticipated or actual litigation. The custodian has provided a copy of a Tort Claims Notice filed on behalf of the requestor’s son referring to a claim for damages arising from an incident occurring at a basketball game and naming the BOE, among others, as potential defendants. While the Notice does not specify the date of the incident, the custodian certainly intended the Council to infer that the incident described in the Tort Claims Notice is the same as that discussed in the closed session.

Since the available evidence shows that the government record in question concerns a discussion of anticipated litigation, the Council is legally justified in finding that the government record is confidential under OPRA by statute, specifically, the Open Public Meetings Act, N.J.S.A. 10:4-12(b)7.  For this reason, the Complaint should be dismissed.

The requestor has other methods to compel the Board to provide copies of some or all of the minutes if she believes that they are being wrongfully withheld under the OPMA. N.J.S.A. 10:4-16 allows the requestor to file a civil suit for injunctive relief or other remedies to ensure compliance with the OPMA. The Court may invalidate official action taken in violation of the OPMA pursuant to N.J.S.A. 10:4-15 and may question meetings in which   no action is taken, but where some violation of OPMA has occurred, such as not keeping minutes or not making minutes promptly available, inadequate notice, or exclusion of all or some part of the public. Loigman v. Township Committee of Tp. of Middletown in County of Monmouth, 308 N.J.Super. 500, 503 (App.Div.1988).

Conclusion
The Acting Executive Director respectfully recommends the Council find that:

1. The requested minutes of the BOE meeting are “government records” pursuant to N.J.S.A. 47:1A-1.1.
2. The requested Executive (“closed”) session minutes are exempt from disclosure pursuant to the Open Public Meetings Act (OPMA) at which the public body discusses anticipated litigation, N.J.S.A. 10:4-12(b)(7) and find that pursuant to the BOE statement,   the BOE discussed in closed session the same incident for which it has received a Tort Claims Notice on behalf of M.R. . 
3. The complaint should be dismissed .
4. The custodian responded in a timely manner .

_______________________________

Paul F. Dice, Acting Executive Director
Government Records Council
Dated:  December 2, 2003

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