Teaneck BOE Violates OPRA to Keep Public in the Dark

What happens in a closed session of the Council or Board of Education stays in that closed session… but the minutes, with proper redactions, are still a public record.

But not according to the Teaneck Board of Education.  I have emailed the Board Secretary to provide these documents.  If they do not do so, suit shall be commenced.

I hope they do not waste taxpayer dollars trying to hide this public information.

Keith Kaplan
Teaneck Today


The Request:

On November 19th, Teaneck Today emailed the district:

I’m requesting closed session minutes for the meetings:
10/18/23
11/8/23
11/15/23

The Denial

In a letter received yesterday from Business Administrator/Board Secretary Haqquisha Q. Taylor, the District asserts:

You sought three (3) sets of closed session minutes for the Teaneck BOE’s Executive Sessions on October 18, November 8, and November 15, 2023. Closed session minutes are not subject to release until the public body has approved the minutes in an open public session. The October 18th minutes were approved on November 15, 2023. The minutes for November 8 and November 15, 2023 were approved by the Board on December 13, 2023.
Your request for all three sets of minutes is denied because:

1. You fail to specify a topic or subject and therefore the request for Executive Session minutes is overbroad, akin to a fishing expedition and invasive of the confidential matters that were discussed by the Board;
2. Some of the materials are advisory, consultative and deliberative at this time and may remain so for an extended period of time and are therefore exempt under the OPRA statute;
3. Some of the materials contain attorney-client protected information and are therefore exempt from release under the OPRA Statute;
4. Some of the materials may contain references to confidential personnel issues which are exempt from release under OPRA;
5. Some of the materials may contain references to confidential student information which are exempt from release under OPRA, the NJ Pupil Records Act and the federal Family Education Rights and Privacy Act (FERPA);
6. The BOE reserves the right to supplement this response should there be any legal action with respect to this OPRA request.

In the ACLU of NJ “Guide to the New Jersey Sunshine Law”, they state fairly bluntly:

“You have the right to obtain meeting minutes for both public and closed sessions.”

The Law

N.J. Stat. § 10:4-14 (“Each public body shall keep reasonably comprehensible minutes of all its meetings showing the time and place, the members present, the subjects considered, the actions taken, the vote of each member, and any other information required to be shown in the minutes by law, which shall be promptly available to the public to the extent that making such matters public shall not be inconsistent with section 7 of this act.”)

Case law bears this out

Kean Fed’n of Teachers v. Morell187 A.3d 153, 167233 N.J. 566, 5902018 BL 219754, at *17 (N.J. 2018)

[W]e have made clear that when a public body meets in closed session, minutes from that session are still subject to the promptly available requirement. S. Jersey Publ’g Co. v. Expressway Auth.124 N.J. 478 , 493-95 , 591 A.2d 921 (1991). Even so, a public entity is permitted to take steps to modify the disclosure where personal privacy interests are implicated, “provided the public interest is not subverted.” Id. at 494 , 591 A.2d 921 . The release of closed session minutes must balance the interests of personal privacy and the public’s right to information:

[I]f a public body legitimately conducts a meeting in closed session under any of the exceptions enumerated in N.J.S.A. 10:4-12(b) , it nevertheless must make the minutes of that meeting “promptly available to the public” unless full disclosure would subvert the purpose of the particular exception.

If disclosure would subvert the purpose of an exception, then the subversion must be balanced against the applicant’s interest in disclosure.

[Payton v. Tpk. Auth.148 N.J. 524 , 556-57 , 691 A.2d 321 (1997).]

Kean Fed’n of Teachers v. Bd. of Trs. of Kean Univ.No. OCN-L-179-14 CIVIL ACTION2014 BL 428623, at *9 (N.J. Super. Ct. Law Div. Sept. 18, 2014)

In other words, if a public body legitimately conducts a meeting in closed session under any of the exceptions enumerated in N.J.S.A. 10:4-12(b) , it nevertheless must make the minutes of that meeting “promptly available to the public” unless the disclosure would subvert the purpose of the particular exception. Payton v. N.J. Tpk. Auth., supra148 N.J. at 556 , 557 . If disclosure would subvert the purpose of an exception, then the subversion must be balanced against the applicant’s interest in disclosure. Ibid. Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, are insufficient. Hammock v. Hoffmann-LaRoche, Inc.142 N.J. 356 , 381-82 , 662 A.2d 546 (1995). The need for secrecy should extend no further than necessary to protect the demonstrated need for confidentiality. Ibid. The redacted minutes should allow the public to get general idea about what is discussed in order to evaluate the wisdom of governmental action. South Jersey, supra124 N.J. at 495 .

N.J. Found. for Open Gov’t v. Island Heights Bd. of Educ.No. OCN L-703-142014 BL 133538, at *5 (N.J. Super. Ct. Law Div. Apr. 25, 2014)

“[O]nly the unusual case will justify total suppression of the minutes of a closed session; such a case would require great harm to the public interest underlying the exception from even minimal disclosure as well as a negligible interest in disclosure.” Payton v. New Jersey Turnpike Authority148 N.J. 524 , 557 (1997) (citing N.J.S.A. 10:4-12(b) ).
Paff v. Borough of Cliffside ParkNo. BER-L-279-142014 BL 63956, at *12 (N.J. Super. Ct. Law Div. Feb. 28, 2014)

The OPMA statute provides the public has a right to be present at all meetings of public bodies, unless one or more of the nine exceptions excluding the public from the meeting applies. N.J.S.A. 10:4-7 ; see alsoN.J.S.A.10:4-12(b) (providing a list of exceptions to the holding of public meetings). Even so, “the Legislature contemplated that the minutes of all meetings, including executive-session meetings, would be disclosed eventually unless their release otherwise would conflict with the legislative purpose in authorizing the executive-session meeting.” S. Jersey Publ’g Co. v. N.J. Expressway Auth.124 N.J. 478 , 491 (1991) (citing N.J.S.A. 10:4-14 ). The Board of Education is required to make all its minutes “promptly” available to the public even when a public body has met in closed session so long as full disclosure of the minutes would not subvert the purpose of having the closed session to begin with. Payton v. N.J. Tpk. Auth.148 N.J., 524 , 557 (1997) (finding if a public body meets in closed session it must still make those minutes “‘promptly available to the public’ unless full disclosure would subvert the purpose of the particular exception” (quoting N.J.S.A. 10:4-14 )). “Prompt” availability for open session minutes has been held to mean a time period of two days to two weeks from the meeting’s conclusion depending in part on when the next meeting is scheduled. See Liebeskindsupra 265 N.J. Super at 394-95 .

Further, the released minutes “must contain sufficient facts and information to permit the public to understand and appraise the reasonableness of the public body’s determination[s] made in a non-public session.” S. Jersey Publ’g Co. v. N.J. Expressway Auth.124 N.J. 478 , 493 . (1991).

Paff v. Borough of Cliffside ParkNo. BER-L-279-142014 BL 63956, at *20 (N.J. Super. Ct. Law Div. Feb. 28, 2014)
If a public body conducts a closed session meeting, “it nevertheless must make the minutes of that meeting ‘promptly available to the public’ unless full disclosure would subvert the purpose of the particular exception.” Payton v. N.J. Tpk. Auth.148 N.J. 524 , 556-57 (1997). However, only an unusual case will justify suppression of the minutes from a closed session; “such a case would [*20] require great harm to the public interest underlying the exception from even minimal disclosure as well as a negligible interest in disclosure.” Id.

Payton v. New Jersey Turnpike Authority, 148 N.J. 524, 556 (N.J. 1997)

Second, a public body that meets in private generally must make the minutes of its meeting “promptly available to the public.” N.J.S.A. 10:4-14. In South Jersey Publishing Co. v. New Jersey Expressway Authority, 124 N.J. 478 591 A.2d 921 (1991), we interpreted this provision as requiring prompt availability even when the public body, in accordance with the Act, has met in closed session. Id. at 493-96, 591 A.2d 921. We stated that

[t]he Legislature . . . expressed its strong policy favoring adequate disclosure of all actions taken by public bodies, whether at public meetings or executive sessions. . . . In our view, it would be anomalous to interpret the Open Public Meetings Act, enacted by the Legislature to enhance the public’s access to and understanding of the proceedings of governmental bodies, in a manner that foreclosed the public’s right to obtain material and information vital to its ability to evaluate the wisdom of governmental action.

South Jersey Publishing Co. v. New Jersey Expressway Auth.591 A.2d 921, 929124 N.J. 478, 493 (N.J. 1991):

The Act specifically requires, however, that the public maintain “reasonably comprehensible minutes” of all meetings including executive sessions to be “promptly available” to the public unless inconsistent with the provisions of the Act authorizing the public body to meet in executive session. N.J.S.A. 10:4-14. The Legislature thereby expressed its strong policy favoring adequate disclosure of all actions taken by public bodies, whether at public meetings or executive sessions.

Contrary to respondent’s contentions, we find no inconsistency between the exemption allowing personnel matters to be discussed and debated in executive session and the Act’s mandate that adequate minutes of all meetings be available to the public.

The Lawsuit?

Teaneck Today is allowing the Board of Education a couple of additional days to provide the public with these public documents.  If they do not follow the law, a suit shall be commenced.

Stay tuned.

2023-12-18_Teaneck Today-OPRA Dec. 2023