Not All Documents Need To Be Open Before An Open Public Meeting

News for public board members (and their audiences): the Sunshine Law does not require public bodies to make all documents referenced in their agendas available to the public prior to a meeting.

A recent published decision by the Appellate Division,Opderbeck v. Midland Park Board of Education, No. A-2520-13T3, reversed a decision by the trial court that interpreted the Open Public Meetings Act, otherwise known as the Sunshine Law, to require public bodies to make available to the public before their meetings all documents provided to the public bodies – that is, not just the agenda, but all the documents referred to in the agenda.  Absent review by the Supreme Court of New Jersey or an amendment to the Sunshine Law by the Legislature, it is now settled:  public bodies need to provide the agenda – the items to be considered or done – prior to the meeting (to the extent known) but need not make available everything referenced in the agenda.

Statutory law requires that public bodies – such as governing bodies, boards of education and planning boards – must give the public written notice of meetings at least forty-eight (48) hours before the meeting.  In addition to providing the time, date and location of the meeting, the required notice should include the agenda for the meeting, “to the extent known.”  The issue before the courts in Opderbeck is whether publishing the “agenda” also requires publishing all the documents mentioned in the agenda.

The trial court interpreted the Sunshine Law, along with the Open Public Records Act, to require the defendant board of education to “make available to the public, by posting to its public website, no later than forty-eight (48) hours before all . . . meetings, the full agenda for such meetings, if such agenda is posted, including copies of any appendices, attachments, reports, and other documents referred to in the agenda[.]

In its decision, the trial court emphasized New Jersey’s policy in favor of open government and disclosure.  This interpretation of the definition of agenda, however, represented a change in course from the non-binding Attorney General’s Advisory Opinion No. 19-1976, which had interpreted the term “agenda” to mean only the list of items to be considered or done.

The Appellate Division rejected the trial court’s interpretation of the term “agenda.”  The court considered the purpose of the Sunshine Law and the times in which it was enacted – a time when newspapers were the primary means of communication – in order to determine the Legislature’s intent when it prescribed the publishing of an “agenda,” “to the extent known.”  Based on this and the plain meaning of the term, the court confirmed the definition of agenda as “a list or outline of things to be considered or done.”  This essentially reconfirmed the longstanding interpretation of “agenda” articulated in the Attorney General’s Advisory Opinion No. 19-1976.  This means that if the agenda refers to appendices, attachments or reports, these documents are not required to be provided along with the agenda.

The Appellate Division recognized that our statutes do not always keep pace with technological advances.

In fact, while public bodies are permitted to post their agendas online prior to meetings, they are not required to do so.  In 2015, many citizens are accustomed to accessing information online and may perceive a public body’s failure to post its agendas to be a lack of public notice.  But the law has not caught up with the pervasiveness of smart phones and internet access.  Of course, nothing prevents public bodies from posting documents referred to in an agenda online, and some public bodies do so.

Whether the Legislature will heed the Appellate Division’s suggestion to consider this issue – and whether it will enact such a requirement after it considers the potential impact on local governments – remains to be seen.